Long Island College Hospital

National Labor Relations Board - Board Decisions

Mar 12, 1993

310 N.L.R.B. 689 (N.L.R.B. 1993)

689
310 NLRB No. 125
LONG ISLAND COLLEGE HOSPITAL
1 Member Oviatt finds that even assuming arguendo that the ‘‘dis-
parity-of-interests’’ analysis announced in St. Francis Hospital, 271
NLRB 948 (1984) (St. Francis II), is more applicable here, as the
Respondent contends, that standard has been satisfied. As shown by
the judge, the petitioned-for unit is appropriate under traditional
community-of-interest criteria, and, in Member Oviatt’s view, sharp-
er than usual differences separate the maintenance-of-plant and engi-
neering department employees from the Respondent’s other non-
professional hospital employees. In this latter regard, Member Oviatt
specifically relies, inter alia, on the following: the Board’s 1979
Local 1199 service unit certification expressly excludes the mainte-
nance and engineering employees; the Board’s 1981 Local 1199
technical unit certification specifically excludes service employees
and maintenance and engineering employees; during a 1984 strike by
the Respondent’s Local 1199-represented employees, the mainte-
nance and engineering department employees crossed Local 1199’s
picket line; and the petitioned-for skilled maintenance unit employ-
ees have maintained a cohesive solidarity throughout a 30-year legal
sojourn to obtain separate representation.
In finding the unit appropriate, Member Raudabaugh relies solely
on the community-of-interest standard that was extant at the time of
the original unit determination, election, and certification. In addi-
tion, although he does not apply the Board’s Health Care Rule to
this case, he notes that application of the community-of-interest
standard to this case results in a unit that is consistent with the Rule.
2 As the judge correctly noted, cases in which the passage of time
plus employee turnover have resulted in judicial refusal to enforce
a bargaining order within a postelection certification year have in-
volved the Board’s failure to hold hearings on prima facie valid
postelection challenges, which would have required setting aside the
elections. NLRB v. Connecticut Foundry, 688 F.2d 871 (2d Cir.
1981); NLRB v. Nixon Gear, 649 F.2d 906 (2d Cir. 1981). Passage
of time and turnover were relevant there because the court’s only op-
tions were remanding and extending the delay or simply denying en-
forcement. There was no option, as here, to enforce a bargaining
order. Further, delay and turnover were relevant in those cases be-
cause fading memories and unavailable witnesses might preclude a
fair hearing and a reliable determination of the challenges. No such
considerations are present here.
The Long Island College Hospital and Local 144,
Hotel, Hospital, Nursing Home and Allied
Services Union, Service Employees Inter-
national Union, AFL–CIO. Cases 29–CA–8460
and 29–CA–4562
March 12, 1993
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On October 19, 1992, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
The judge sets forth the long legal history of these
employees’ attempts to secure a bargaining representa-
tive beginning with the state labor board and court and
progressing through this Board and the Federal courts.
We agree with the judge that a bargaining order is the
appropriate and only effective remedy for the Re-
spondent’s refusal to bargain following the Union’s
certification, despite the passage of time and the turn-
over of employees in the unit. As explained below, we
conclude that issuance of a bargaining order will best
effectuate the central policies of the Act.
‘‘The central purpose of the Act [is] to protect and
facilitate employees’ opportunity to organize unions to
represent them in collective-bargaining negotiations.’’
American Hospital Assn. v. NLRB, 111 S.Ct. 1539,
1541–1542 (1991). Here, the Union was certified in an
appropriate unit in 1980 after a Board election in 1979.
Therefore, our remedial choice is not between a bar-
gaining order or an election in the first instance, but
between a bargaining order or ordering a second Board
election, with the prospect for additional delay. We
recognize the basic point that it would be inappropriate
to refuse to issue a bargaining order where, as here,
there has been a Board election, the Union was cer-
tified, and the Company thereafter has refused to bar-
gain. NLRB v. Patent Trader, 426 F.2d 791, 792 (2d
Cir. 1970). To require still another Board election in
such circumstances, would undermine the central pur-
pose of the Act. It would give an employer an incen-
tive to disregard its duty to bargain in the hope that,
over a period of time, the union would lose its major-
ity status or would abandon the unit, and the employer
would then not be required to bargain or could seek
a new election. Patent Trader, supra, 426 F.2d at 792.
Consequently, the passage of time and turnover
since the Union was certified do not warrant denial of
a bargaining order remedy.2 Inordinate delay in any
case is regrettable. However, employees are in no way
responsible for the fact that the Union has not yet had
an opportunity to bargain for the unit. The delay in
this case is largely attributable to the continuing confu-
sion engendered by lengthy litigation over the issue of
the appropriateness of bargaining units in the health
care industry. As the Supreme Court and Seventh Cir-
cuit recognized in affirming the Board’s authority to
engage in substantive rulemaking to decide appropriate
collective-bargaining units in acute care hospitals like
the Respondent’s, it was not unreasonable for the
Board to substitute clear rules for loose and fluctuating
standards that were repeatedly rejected by the courts of
appeals. The propriety of those rules was not finally
resolved until 1991.
Here, the Respondent attempts to rely on the interim
changes in the law in this area to avoid a valid certifi-
cation with which it refused to abide. We refuse to let
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Of course, current employees have the statutory right to petition
for decertification of the bargaining representative where appropriate,
if they choose to do so. See NLRB v. Star Color Plate Service, 843
F.2d 1507, 1510 (2d Cir. 1988).
1 Respondent’s answer was amended at the hearing to admit the
filing and service of the charge, and to admit a conclusionary para-
graph concerning the Board’s jurisdiction over it.
it do so. The Supreme Court long ago recognized that
allowing an employer to invoke delays incident to
Board proceedings to justify a refusal to bargain with
a union which represented a majority of the employees
at the time of the employer’s wrongful refusal to bar-
gain, even despite that union’s subsequent failure to re-
tain its majority, a mitigating fact not shown here,
would improperly permit employers to profit from
their own wrongful refusal to bargain. Frank Bros. Co.
v. NLRB, 321 U.S. 702, 704–705 (1944). A fortiori,
this reasoning applies here where there has been a
Board election (held in accordance with the Second
Circuit’s remand order), the Union had been certified,
and the Respondent has continuously refused to bar-
gain in good faith. NLRB v. Patent Trader, supra. The
Respondent has enjoyed the fruits of its unlawful re-
fusal to bargain during the period of delay. We will
not visit the consequences of delay on the wronged
employees to the benefit of the wrongdoing employer.
NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 264–265
(1969).
This remedy, in any event, does not fix a permanent
bargaining relationship without regard to new cir-
cumstances that may develop.3 We conclude that here
a bargaining order best effectuates the central purpose
of the Act by recognizing that a bargaining relationship
once rightfully established must be permitted to exist
and function throughout the certification year, so as to
give the relationship a fair and reasonable chance to
succeed.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Long Island College
Hospital, Brooklyn, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
David S. Cohen, Esq., for the General Counsel.
Joel E. Cohen, Esq. (Kelley Drye & Warren, Esqs.), of New
York, New York, for the Respondent.
James Wasserman and Hanan B. Kolko, Esqs. (Vladeck,
Waldman, Elias & Engelhard, P.C.), of New York, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to a
charge filed on November 21, 1980, by Local 144, Hotel,
Hospital, Nursing Home and Allied Services Union, Service
Employees International Union, AFL–CIO (Local 144), a
complaint was issued against The Long Island College Hos-
pital (Respondent) on December 30, 1980. The complaint al-
leges, essentially, that on October 1, 1980, and since that
date, Respondent refused to bargain with Local 144 which
had been certified by the Board in August 1980 pursuant to
a Board election held in January 1979 in a unit consisting
of maintenance of plant and engineering department employ-
ees.
Respondent’s answer to the complaint denied the material
allegations thereof, and asserted certain affirmative defenses.1
Those affirmative defenses included that the unit set forth in
the complaint was inappropriate for the purposes of collec-
tive bargaining.
A hearing was held before me in Brooklyn, New York, on
August 6, 1992.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witness and after consider-
ation of the briefs filed by all parties on September 4, 1992,
I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation having its office and
place of business at 340 Henry Street, Brooklyn, New York,
is engaged in the operation of a nonprofit hospital, providing
medical and other health-related services. During the past
year, Respondent derived gross revenues in excess of
$250,000 from its business operations, and also during the
same period purchased goods valued in excess of $10,000
from vendors located outside New York State, which were
shipped directly to its New York facility.
Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find that it is a health care institu-
tion within the meaning of Section 2(14) of the Act.
Respondent also admits and I find that Local 144 is a
labor organization within the meaning of Section 2(5) of the
Act.
II. BACKGROUND
A. The State Labor Relations Board Proceedings
In July 1964, Respondent’s maintenance and engineering
employees voted in a self-determination election conducted
by the New York State Labor Relations Board (SLRB) to be
represented by Local 144. On December 28, 1964, the SLRB
certified Local 144 as the representative of those employees.
Respondent refused to bargain with Local 144, asserting,
inter alia, the inappropriateness of the unit, and Local 144
sought review through a provision of the New York State
Labor Relations Act (SLRA) providing for mediation, fact-
finding, and binding arbitration of disputes in the nonprofit
hospital industry. In November 1968, the New York Court
of Appeals held that resort to the arbitration provisions of the
SLRA was inappropriate. Long Island College Hospital v.
Catherwood, 23 N.Y.2d 20 (1968), appeal dismissed, Ottley
v. Long Island College Hospital, 394 U.S. 716 (1969).
691LONG ISLAND COLLEGE HOSPITAL
Respondent then moved that the SLRB vacate the certifi-
cation as stale and unenforceable due to the passage of time
and changes in the composition of the unit. The SLRB de-
nied the motion. In May 1969, Local 144 filed a refusal-to-
bargain charge against Respondent with the SLRB. Fol-
lowing a hearing, the SLRB found that Respondent had re-
fused to bargain with Local 144 in the unit certified. This
finding was ultimately upheld by the New York Court of Ap-
peals. Long Island College Hospital v. New York State Labor
Relations Board, 32 N.Y.2d 314, 85 LRRM 2580 (1973),
cert. denied 415 U.S. 957 (1974).
Respondent thereupon began to bargain with Local 144,
nevertheless continuing to assert the inappropriateness of the
unit. Following the amendments of the National Labor Rela-
tions Act (the Act) in 1974 pursuant to which Respondent
became subject to the Act, Respondent refused to bargain
with Local 144.
B. The Proceedings Before the Board
On September 8, 1975, Local 144 filed a charge with the
Board which alleged that Respondent refused to bargain with
it for the unit consisting of maintenance of plant and engi-
neering department employees. A complaint was issued, and
following a hearing held before Administrative Law Judge
Michael O. Miller, the Board found that Respondent violated
the Act by refusing to bargain. The Board extended comity
to the SLRB certification. Long Island College Hospital, 228
NLRB 83 (1977).
On review, the Second Circuit Court of Appeals vacated
the Board’s Order. The court held that the Board improperly
accepted the certification issued by the SLRB as its own.
The court, noting the length of time that had passed—13
years since the election—and the high turnover in the unit
since that time, remanded the matter to the Board with direc-
tions to make ‘‘its own determination of an appropriate bar-
gaining unit . . . and thereupon to hold a representation elec-
tion.’’ Long Island College Hospital v. NLRB, 566 F.2d 833
(2d Cir. 1977).
On remand, Respondent argued that the unit was inappro-
priate, and further stated that the smallest appropriate unit
should include all service, maintenance, and related technical
employees.
Pursuant to the remand, the Board issued a Supplemental
Decision and Direction of Election, finding the unit con-
sisting of maintenance of plant and engineering department
employees appropriate. The Board considered the evidence at
the hearing conducted by Judge Miller, and the statements of
position of the parties, including an affidavit of Respondent’s
official.
The Board made the following findings concerning the op-
erations at Respondent at that time.
Respondent employs about 2200 employees, of whom 540
are service employees, and about 69 are nonclerical, non-
supervisory maintenance, and engineering employees em-
ployed in its maintenance and engineering department, which
is supervised by the director of engineering. That person al-
most exclusively dispatches and supervises the department’s
maintenance employees.
The Board found that the employees in the unit consisted
of 2 incinerator men, 8 laborers, 5 helpers, 6 firemen, 36
maintenance men, 3 lead maintenance men, 1 refrigeration
mechanic, 1 preventive maintenance man, 2 boiler mechan-
ics, and 5 watch engineers.
The maintenance personnel paint and maintain and repair
light fixtures, toilets, plumbing, faucets, and ceiling tiles.
Other maintenance men operate and maintain low-pressure
boilers and maintain window air-conditioning units. Still
other maintenance employees, about 14, are involved in
building alterations and construction. The laborers clean and
operate the Somak machine which pulverizes and liquefies
waste. The watch engineers are licensed by the city of New
York.
The Board found that, although prior craft experience is
not a prerequisite for hire, the personnel department requires
general handyman experience for employees in the depart-
ment, and Respondent provides on-the-job training to the
more highly skilled maintenance employees.
The Board also found that although the maintenance em-
ployees spend most of their time performing tasks throughout
the hospital, they have limited contact with nonmaintenance
workers, and further, there is virtually no functional integra-
tion with work performed by service employees, no day-to-
day interchange between the unit employees and service em-
ployees, and limited permanent transfers between the unit at
issue and the service unit. The Board also found that the
wage rates received by the maintenance and engineering em-
ployees are generally higher than those of the service em-
ployees.
The Board gave little weight to evidence of common bene-
fits and working conditions such as holidays, vacations, sick
leave, and insurance, enjoyed by all Respondent’s employees
because such benefits were shared by professionals as well
as nonprofessional employees.
Pursuant to the remand of the court of appeals, the Board,
having found the unit of maintenance of plant and engineer-
ing department employees to be appropriate, directed that an
election be held. Excluded from the unit were maintenance
department clericals, on the ground that they frequently inter-
change with nonmaintenance department employees, and bio-
medical technicians, on the ground that they are separately
supervised and possess greater skills than maintenance em-
ployees. Long Island College Hospital, 239 NLRB 1135
(1978).
On January 25, 1979, the Board conducted an election,
which resulted in a majority of voters voting for Local 144.
District 1199 National Union of Hospital and Health Care
Employees, RWDSU, AFL–CIO (Local 1199) also appeared
on the ballot. The Respondent filed objections to the election,
which were overruled, and on August 27, 1980, the Board
certified Local 144 as the collective-bargaining representative
in the following unit:
All full-time and regular part-time employees in the
maintenance of plant and engineering department, ex-
cluding chief engineers, assistant chief engineers, clerk
and maintenance supervisors, as defined in Section
2(11) of the Act.
On September 24, 1980, Local 144 requested that Re-
spondent negotiate with it. On October 1, Respondent re-
fused, asserting the inappropriateness of the certified unit.
Thereafter, on November 21, 1980, the instant charge was
filed, and thereafter, this complaint was issued. Following the
692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
filing of Respondent’s answer, a Motion for Summary Judg-
ment was filed with the Board by counsel for the General
Counsel. On September 17, 1984, the Board issued an order
denying the motion, and remanding the matter for the Re-
gional Director’s further consideration consistent with St.
Francis Hospital, 271 NLRB 948 (1984) (St. Francis II),
‘‘including, if necessary, a reopening of the record in the
representation case and the issuing by the Regional Director
of a Supplemental Decision, if appropriate.’’
Subsequently, the Regional Director issued an order and
notice of hearing for the purpose of adducing evidence on
the appropriateness of the unit in light of St. Francis II.
Following a hearing conducted by a hearing officer during
the period November 1984 to June 1985, the Regional Direc-
tor, on October 29, 1985, issued a supplemental decision in
which he found that a bargaining unit limited to that alleged
here was inappropriate and did not meet the ‘‘disparity of in-
terest’’ test set forth in St. Francis II. The Regional Director
recommended that the Board set aside its Supplemental Deci-
sion and Direction of Election, vacate the election of January
1979 and the certification which resulted from that election,
and withdraw or dismiss the instant complaint. The record in
that hearing was received in evidence at the instant hearing.
Local 144 requested review of the Regional Director’s
supplemental decision, and on May 1, 1986, the Board grant-
ed the request for review as it raised substantial issues war-
ranting review.
In March 1987, the U.S. Court of Appeals for the District
of Columbia rejected the Board’s disparity-of-interest test
and remanded St. Francis II to the Board. Electricial Work-
ers IBEW Local 474 v. NLRB, 814 F.2d 697 (D.C. Cir.
1987).
Thereafter, the Board held hearings concerning its pro-
posed rulemaking for the purpose of determining collective-
bargaining units in the health care industry. On April 21,
1989, the Board issued its Final Rule on Collective-Bar-
gaining Units in the Health Care Industry. 284 NLRB 1596
(1989).
On April 23, 1991, the Supreme Court rejected a challenge
to the Board’s authority to make the Final Rule. American
Hospital Assn. v. NLRB., 111 S.Ct. 1539 (1991).
On June 13, 1991, the Board issued a Decision and Order,
granting Local 144’s request for review of the Regional Di-
rector’s supplemental decision. The Order stated that the
Final Rule is now effective, and the Board thereupon re-
manded the matter to the Regional Director for further pro-
ceedings consistent with the Final Rule. The Board also stat-
ed that the parties would be given an opportunity to address
this issue and its applicability to this case.
On June 16, 1992, an order rescheduling hearing was
issued by the Regional Director, setting a hearing in this
matter for August 1992.
On June 29, 1992, Local 144 filed a petition for a writ of
mandamus with the Second Circuit Court of Appeals, seek-
ing to have the Board issue a final order in this case. The
Board opposed the petition. On August 11, 1992, the court
denied the petition with leave to renew it after 90 days.
As set forth above, this hearing was held on August 6,
1992.
C. Positions of the Parties
The General Counsel and Local 144 argue that the bar-
gaining unit certified by the Board in 1979 and alleged in
the complaint issued in 1980 was an appropriate bargaining
unit under the Board’s Rules prevailing then and should not
be disturbed, and continues to be an appropriate bargaining
unit at this time, pursuant to the Board’s Final Rule. The
General Counsel further argues that if the Final Rule is not
applied to this case, the bargaining unit alleged should be
found appropriate under the community-of-interests standard
applied by the Board in 1978. Moreover, he urges that if the
Final Rule is not applied here, it should be examined for
guidance in determining the unit issue.
Accordingly, the General Counsel seeks a finding that Re-
spondent refused to bargain with Local 144 since October 1,
1980, following the Board’s certification of that Union fol-
lowing the 1979 election.
Respondent argues that the bargaining unit alleged in the
complaint has been inappropriate at all times. It further states
that such a finding of inappropriateness was made when, in
October 1985, the Regional Director found that the unit did
not meet the disparity-of-interest test in St. Francis II and
recommended that the election and certification be vacated
and the instant complaint dismissed or withdrawn. Respond-
ent further argues that it cannot be found to have violated
the Act during the period of time when the St. Francis II test
was applicable, and therefore the complaint, which alleges
that Respondent refused to bargain since October 1980, is
defective and must be dismissed.
Thus, Respondent argues that if it did not commit a viola-
tion in 1985 by refusing to bargain with Local 144, it cannot
be found to have violated the Act now by refusing to honor
the same certification.
Respondent further argues that it has been prejudiced be-
cause, following the Regional Director’s issuance of the sup-
plemental decision in October 1985, the instant complaint
should have been immediately dismissed, as recommended
by the Regional Director. However, no final decision was
issued by the Board at that time. Rather, this case was held
in abeyance first pending a review of the St. Francis II
standard, and then pending the rulemaking hearings, and the
issuance of the Final Rule. Respondent argues that had this
case been ‘‘unfrozen’’ at any time prior to the issuance of
the Final Rule, it would have been decided under the St.
Francis II standard and would have been dismissed, as rec-
ommended by the Regional Director. St. Vincent Hospital,
285 NLRB 365 (1987).
Respondent therefore argues that this case must be decided
pursuant to St. Francis II.
Respondent urges that if a violation is found, a bargaining
order is an inappropriate remedy under the circumstances of
this case. Respondent argues that such a remedy would be
improper considering the length of time since the 1979 cer-
tification, and the extent of employee turnover during that
time. It notes that the delay was not caused by it, but rather
by the Board’s holding the case in abeyance. Respondent
concludes that imposing a bargaining order remedy on it, and
imposing a labor organization on employees who have not
had an opportunity to select a union, improperly frustrates
employee rights. Respondent suggests that, assuming a viola-
tion is found, an election should be ordered.
693LONG ISLAND COLLEGE HOSPITAL
D. The Law to be Applied
The complaint alleges, and Respondent admits, that since
about October 1, 1980, it has refused to recognize and bar-
gain collectively with Local 144 as the exclusive collective-
bargaining representative of its employees in the following
unit:
All full-time and regular part-time employees in the
maintenance of plant and engineering department, ex-
cluding chief engineers, assistant chief engineers, clerk
and maintenance supervisors, as defined in Section
2(11) of the Act.
As set forth above, the General Counsel argues that the
unit found appropriate in 1979, which was the certified unit,
should not be disturbed. In the alternative, he contends that
the Final Rule or the community-of-interests standard should
be applied in determining the appropriateness of the unit.
Local 144 notes that the Final Rule states that it applies
to all cases decided on or after May 22, 1989 (Sec.
103.30(e), 284 NLRB at 1597), and thus argues that because
this case is being decided after that date, the Final Rule ap-
plies to this decision.
In its second notice of proposed rulemaking, the Board
stated that the Final Rule ‘‘regarding appropriate units in the
health care industry shall apply to all decisions made on and
after the effective date of the rule.’’ However, as to cases
currently pending before it which do not ‘‘issue prior to the
rule’s effective date, the Board will not apply the rule de
novo to such cases, but will, where necessary, remand such
pending cases to regional directors to determine the need for
a hearing or other appropriate course of conduct in order to
permit parties to address the rule.’’ 284 NLRB at 1572.
The Board’s June 1991 Decision and Order, granting the
request of Local 144 for review, stated that this matter was
remanded for further proceedings ‘‘consistent with the Final
Rule.’’ The Board also stated that the parties would be given
an opportunity to address ‘‘this issue and its applicability to
this case.’’ That statement was apparently a reference to the
Board’s second notice of proposed rulemaking, cited above.
Respondent argues that St. Francis II must be applied. In
St. Vincent, supra, the Board applied ‘‘existing law’’ to pend-
ing representation cases until the Final Rule was issued. Re-
spondent further argues that the Final Rule applies exclu-
sively to representation cases and not unfair labor practice
cases, such as this case, and that a retroactive application of
the Final Rule violates the Administrative Procedure Act.
I believe that this case must be decided by looking at two
standards: the law as it existed when the alleged violation
first occurred on October 1, 1980, and the current state of
the law.
In 1980, the Board determined the appropriateness of a
unit in the health care industry by examining it pursuant to
a community-of-interests standard. At this time, the Board
determines the appropriateness of such a unit pursuant to the
Final Rule.
I do not believe that it would be appropriate to analyze the
unit pursuant to St. Francis II as urged by Respondent. That
case was applied to cases decided during the pendency of the
issuance of the Final Rule. St. Vincent, supra. Here, however,
the Final Rule has issued. Moreover, St. Francis II con-
stituted the law as to this issue for a brief period of time,
and is no longer applicable in determining the appropriate-
ness of collective-bargaining units in the health care industry.
Since St. Francis II the Board has changed its policy con-
cerning the determination of appropriate collective-bargaining
units in the health care industry, and I do not believe it may
be appropriately used to analyze this case. Although it is true
that the Regional Director made a determination that the unit
here was inappropriate under St. Francis II, the Board made
no finding on that issue at the time, pursuant to a request for
review by Local 144.
It is also true, as argued by Respondent, that had the
Board denied the request for review during the time that St.
Francis II was the applicable law, the instant complaint
would have been dismissed. However, that issue is not be-
fore me.
As to Respondent’s argument that the Final Rule is appli-
cable to the determination of the appropriate collective-bar-
gaining units in representation cases only, this unusual case,
although before me as an unfair labor practice case, has rep-
resentational case aspects. A petition was filed with the
SLRB, and although no petition has been filed with the
Board, the Second Circuit Court of Appeals directed that an
election be held, and thereafter, an election was held among
the employees in this unit.
E. The Facts
The parties stipulated that, to the extent not contradicted
by the record in the instant hearing, the facts contained in
the record made in 1984–1985 before a hearing officer are
still applicable to Respondent and its employees today, and
that the facts remain the same. As set forth above, the record
in the 1984–1985 hearing was received in evidence here.
Respondent, a nonprofit hospital located in Brooklyn, New
York, has 630 beds and employs more than 2000 employees.
Respondent employs the following nonsupervisory em-
ployees in separate units represented by Local 1199: about
800 to 850 employees in a service unit; about 150 employees
in a technical unit; and about 150 employees in a nonnursing
professional unit. The New York State Nurses Association
represents about 550 registered nurses in a unit consisting of
registered nurses.
In 1985, Respondent employed 70 to 80 nonsupervisory
employees in the unit at issue here, the maintenance of plant
and engineering department employees. By the time of the
instant hearing, there were about 56 employees in that de-
partment. Of those 56 currently employed, 20 were employed
in the unit at the time of the 1979 election. Thus, about 35
percent of the current unit was employed in the unit at the
time of the election.
The department of engineering, as it is called now, is re-
sponsible for maintaining and repairing all the buildings and
physical plant of Respondent. It employs workers who oper-
ate and repair heating, ventilation, and air-conditioning
equipment and electrical, mechanical, and plumbing systems.
The department of engineering has as its head, the director
of engineering, currently Ronald Williams, who is in overall
charge of the day-to-day activities of the department. Wil-
liams testified at the instant hearing as to differences in the
department since 1981, when he became employed by Re-
spondent as the assistant director of engineering. Williams
makes the final decisions with respect to the hire of the de-
partment’s employees, and, subject to review by Respond-
694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The biomedical manager and biomedical engineering technicians
were excluded from the certified unit by the Board in its Supple-
mental Decision and Direction of Election and were removed from
the department of engineering shortly before the instant hearing. The
technicians are in a unit consisting of technical employees, rep-
resented by Local 1119.
The telephone maintenance persons and telephone operators were
removed from the department of engineering in 1991.
There are three clerical employees employed in the department of
engineering. The Board excluded them from the unit. 239 NLRB
1135.
3 In 1981, there was no project engineer. The group was headed
by the operations manager, who at the time of the hearing was still
the supervisor of the construction group, and who reports to the
project engineer.
ent’s human resources department, makes decisions con-
cerning the discharge of such employees. Williams reports to
Respondent’s vice president for support services, who reports
to the executive vice president for administration, who re-
ports to the president of Respondent.
The department of engineering is organized with five
groups of employees ultimately responsible to Williams.
Those groups are the maintenance department, the electrical
department, the HVAC (heating, ventilation, air-conditioning)
department (also known as the engineering department), the
construction group, and the dispatcher.2
Three of the groups are headed by statutory supervisors
who report to an assistant director of engineering, who re-
ports to Williams, the director. Those three supervisors are
the maintenance manager, the electrical manager, and the
chief engineer.
The other two groups are the construction group, which is
headed by a project engineer3 who reports to Williams, and
the office manager, who is in charge of a secretary and the
dispatcher. The project engineer and office manager are also
statutory supervisors.
The supervisors in all the groups set forth above make as-
signments to the employees in their group. Employees within
one group are not assigned to perform work within the other
groups.
Current job descriptions of all classifications of employees
were received in evidence, and certain of them were testified
to.
The engineering department employees have a locker room
in the basement of one of Respondent’s buildings. No other
hospital employees use that room. The shops for the various
engineering department groups are also located in that build-
ing. All engineering department employees except the boiler-
room workers punch a timeclock at that building. It should
be noted that employees who work in accounts payable, pur-
chasing, and the printshop punch the same timeclock in the
same building as the engineering department employees.
1. Maintenance department
The maintenance department, a group supervised by the
maintenance manager, has employees within it in the fol-
lowing classifications: maintenance mechanic, maintenance
worker, carpenter A, carpenter B, painter A, painter B,
plumber A, plumber B, mason/plasterer, and preventive
maintenance coordinator. There are 17 budgeted non-
supervisory positions in the maintenance department.
No special skills are required for the maintenance mechan-
ics or maintenance workers. They learn their jobs through
on-the-job training. The maintenance mechanics make repairs
to plumbing leaks or repairs to walls. They help the car-
penters, painters, plumbers, and masons in their work. They
do preventive maintenance work that the preventive mainte-
nance coordinator assigns, such as repairing a light or a
nurse’s call bell that is not working, a hole in the wall, or
a leaky faucet.
The maintenance workers work with the maintenance de-
partment employees, assisting the carpenters, painters, and
plumbers. They work as general helpers.
The carpenter A is a skilled carpenter who makes fur-
niture, repairs and installs door checks, and hangs doors.
Carpenter B persons assist the carpenter A people.
The painters are engaged in interior painting, and to a
minor extent, exterior painting.
The plumbers generally perform maintenance plumbing,
such as repairing leaks. They are not licensed, and licenses
are not required by Respondent. They receive on-the-job
training. The plumber A does major replacement and repairs,
including repairs of broken piping. The plumber B does
minor repair work, such as toilet stoppages, and assists the
plumber A person.
The mason/plasterer does tilework and plastering. He
works closely with the painters.
The preventive maintenance coordinator, a supervisor, as-
signs and schedules work to the people in this department,
and ensures that the work is done properly. He also evaluates
the work of the employees in this department and effectively
recommends the hire and termination of employees.
2. The electrical department
This department has nine budgeted positions.
The electrician A, who is not required to have a license,
repairs electrical equipment in all Respondent’s buildings, in-
cluding lighting fixtures and appliances. The maintenance
mechanic assists the electrician in making repairs.
The maintenance worker essentially changes light bulbs.
The storeroom clerk issues equipment to everyone in the en-
gineering department.
3. The HVAC department or boilerroom
This department has 20 budgeted positions, but had 5 va-
cancies at the time of the instant hearing.
The HVAC mechanic A is a HVAC mechanic who is ex-
pected to be able to operate, handle, and repair every piece
of equipment in the facility, including absorption units, cen-
trifugal units, and reciprocating compressors.
The HVAC mechanic B is not as skilled as the HVAC
mechanic A. The HVAC mechanic B can repair simpler,
smaller pieces of equipment such as an ice machine, window
air-conditioner, and fan unit. The HVAC mechanic B has
been promoted into the HVAC mechanic A position, and oc-
casionally, the HVAC mechanic B works closely with the
HVAC mechanic A in the performance of all the A mechan-
ic’s work.
The lead HVAC mechanic assigns work to and assists oth-
ers in their work. This person functions basically as a HVAC
mechanic A. Specifically, he installs, inspects, operates, and
repairs refrigeration machinery, air-conditioning units, and
cooler/freezer units.
695LONG ISLAND COLLEGE HOSPITAL
The HVAC engineer is a licensed refrigeration operator,
and operates equipment pursuant to the New York City
Code. He maintains air-moving equipment throughout the
hospital. He is expected to repair any piece of HVAC equip-
ment in the hospital.
The watch engineer is a stationery engineer. He is required
to have a stationery engineer’s license, and a refrigeration li-
cense. He monitors and operates high pressure boilers and
auxiliary equipment, including feed water pumps, deaerating
tanks, air-handling equipment, chillers, and absorption equip-
ment and, if necessary, heavy tonnage HVAC equipment.
The fireman/maintenance mechanic maintains the boiler-
room, taking water samples, testing the water, and cleaning
the boilerroom and boilers. The job description for this posi-
tion states that the licensure is a New York City pollution
certificate. However, none of the employees in this position
have such a certificate.
The maintenance mechanic repairs water leaks and stains
from leaks. He helps the fireman/maintenance mechanic and
the HVAC employees, either in the boilerroom or where
HVAC equipment is in use throughout the hospital, for ex-
ample in a radiator in a patient’s room.
The waste-heat supervisor, who does not supervise any
employees, is a boiler mechanic who repairs broken boilers
throughout the hospital’s 44 buildings.
At the time of the instant hearing, there were no inciner-
ator operators because the Respondent has ceased use of its
incinerator. There are no plans to resume operation of the in-
cinerator or employ incinerator operators.
4. The construction group
There are 13 budgeted positions in this group.
The construction group is responsible for nonmajor con-
struction and renovation of the facility. It comprises individ-
uals in different trades who work together to complete a
project. Some of the projects completed by this group in-
clude converting a waiting room and testing area to private
practice suites, and renovating a dialysis center to obtain
more space around the dialysis stations. Typical of the work
done by the construction group includes erecting partitions,
moving walls and plumbing, installing a new ceiling and re-
cessed lighting fixtures, new floor, painting, installing bath-
rooms, installing electrical outlets, and running electrical
lines.
Major construction in the hospital, involving the building
of the Polak Pavilion, and the installation of sophisticated
equipment such as CAT scans, computers, and complex elec-
trical delivery systems, are performed by an outside con-
tractor.
The carpenter A works from blueprints in erecting parti-
tions, walls, and ceilings. He also makes furniture on rare oc-
casions. The carpenter B assists the carpenter A.
The electrician A also works from blueprints in installing
wiring, lighting fixtures, outlets, and machinery and equip-
ment in renovated areas.
The maintenance worker is a laborer who cleans the work
area and removes garbage. The maintenance plasterer plasters
areas requiring such work.
The plumber A works from blueprints in building bath-
rooms, kitchens, sinks, and showers. The plumber B assists
the plumber A.
The painter paints where needed.
5. The dispatcher
The dispatcher works in the office of the director of engi-
neering. He receives calls of problems within the facility and
writes a work order, and places it in the appropriate super-
visor’s workbox. The supervisor assigns the work to an em-
ployee, who then performs the job. The work order is signed,
as having been completed, by the supervisor in the area
where the employee does the work.
F. The Skilled Nature of the Unit
Respondent argues that some of the positions in the main-
tenance and engineering department are not skilled, and ac-
cordingly, the unit at issue here is inappropriate as this is not
a skilled maintenance unit.
Director of Engineering Williams testified that with re-
spect to the persons in the A classifications, such as painter
A, plumber A, electrician A, and HVAC mechanic A, he in
most cases is able to obtain employees with the full quali-
fications of those positions, as set forth in the job descrip-
tion. However, when those persons are not available, those
hired have at least most of the qualifications in those job de-
scriptions.
For example, the job description of the HVAC mechanic
A requires a vocational high school diploma, 1 year of trade
school, a New York City refrigeration license, and 3 to 4
years’ experience. The carpenter A requires a high school or
trade school diploma and 5 years’ experience as a journey-
man carpenter. The plumber A requires a high school or
trade school diploma, and 5 years’ experience as a journey-
man mechanic for a licensed plumber. The painter A requires
a high school diploma and 5 years’ experience as a journey-
man painter. The electrician A requires a high school or
trade school diploma and 5 years’ experience as a journey-
man electrician for a licensed electrician.
Similarly, the positions of lead HVAC mechanic, who is
essentially a HVAC mechanic A, the watch engineer, who
holds two licenses, and the fireman/maintenance mechanic,
who maintains the boilers, are in skilled positions.
Director of Engineering Williams testified that the fol-
lowing positions require individuals who are low skilled,
having no special training, education, or experience: HVAC
mechanic B, carpenter B, plumber B, painter B, electrician
B, storeroom clerk, and the maintenance workers in the var-
ious departments. He stated that they assisted by cleaning the
area and doing unskilled jobs, in the case of the electrical
department maintenance worker, changing light bulbs.
However, he also stated that when hiring individuals such
as carpenter B, plumber B, or mechanic B, he ideally seeks
to hire persons having general mechanical backgrounds, and
mechanical experience, but applicants with such credentials
are not always available.
Although less skilled, the B positions of painter, plumber,
HVAC mechanic, carpenter, and electrician assist the persons
in the corresponding A positions, and here more than one
person is needed to perform a job, they work with the A per-
son to complete the assignment. Director Williams testified
that the persons in the B positions are low skilled, having
no special education, training, or experience. However, he
seeks to hire for certain B classifications, persons who pos-
sess mechanical backgrounds and experience. In addition,
even if they are hired without experience, they receive on-
696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the-job training, and have the skills necessary to complete
their assignments.
Although the positions of mason/plasterer, maintenance
mechanic, maintenance worker, storeroom clerk, maintenance
plasterer, and laborer may also be less skilled than those in
the A or B positions, they are part of an identifiable, separate
unit of employees engaged in a specific, separable area of re-
sponsibility within the hospital. They thus work within the
maintenance and engineering department, assisting the other
more skilled classifications set forth above, in the completion
of the work of the department, and are thus an integral part
of the department.
G. Transfers of Employees
Employee Stanley Sealy transferred from the food service
department to the department of engineering in 1974. He is
now a maintenance mechanic. Ralph Damberdella transferred
from a porter’s position in the housekeeping department to
the maintenance group, where he is a maintenance worker.
Richardo Ortega transferred from the housekeeping depart-
ment to the engineering department where is a painter B. A
security guard was hired into the engineering department as
an electrician.
In the past, a plasterer or mason in the engineering depart-
ment was laid off, and then obtained a position in the X-ray
department.
There was no evidence of transfers from the various
groups within the department of engineering.
H. Comparisons Between the Unit and Other
Employees of the Respondent
The hiring procedure for employees in the engineering de-
partment is the same for all other employees in the hospital.
They complete an application, have an interview with the
personnel department, and receive a medical examination.
The same personnel policy manual applies to all employees
of the hospital. The probationary period for all employees is
3 months.
All Respondent’s employees work 37-1/2 hours per week,
including those in the unit here. The engineering department
employees’ basic work hours are from 7:30 a.m. to 3:30 p.m.
or from 8 a.m. to 4 p.m. However, there are others in that
department, such as boilerroom personnel, who have shifts
which enable the boilerroom to be manned around the clock.
The lunch break times for all Respondent’s employees are
essentially the same.
All nonunion employees receive the same pension and
benefits, including a health plan.
There is a cafeteria which is available for use by all em-
ployees.
There is one payday for all employees in the hospital, and
all employees must wear identification badges. All vacations
are approved by supervisors.
The current weekly salaries of the employees working in
current classifications in the engineering department range
from $388.54 for the laborer to $751.71 for the watch engi-
neer. Those employees in the A classifications earn from
$485.06 for the painter A to $547.96 for the electrician A.
Those in the B classifications earn from $467.10 for the
painter B to $505.29 for the electrician B. Maintenance
workers receive $420.48 per week.
Inasmuch as Respondent argues that the engineering de-
partment employees do not constitute a separate bargaining
unit, and should be included within the service unit rep-
resented by Local 1199, a comparison of salaries should be
made with that department. The salaries in the service unit
range from $385.34 for such classifications as housekeeping
worker, aide, transporter, food service worker, attendant,
clerk, and messenger to $572.10 for the secretary III.
It should be noted that the classifications sought to be
compared by Respondent, the dietary/receiving stores clerk
and the receiving/stores clerk in the service unit receive a
weekly salary of $406.91 compared to $430.79 received by
the engineering department stores clerk.
The personnel in the department of engineering have con-
tact with employees in other parts of the hospital. Thus,
when the painter appears in a patient room ready to paint,
the housekeepers move the furniture out of the room, and the
nurses move the patient into the hallway. Also, when peri-
odic, major cleaning of a patient’s room is performed by the
housekeepers (cycle cleaning), the maintenance mechanic re-
pairs, at the same time, any device which is broken in that
room, such as an oxygen outlet or fan coil unit, so as to min-
imize the amount of time the room is out of service.
In addition, when repairs are made by an engineering de-
partment employee to kitchen equipment, the food service
employees protect the area against contamination caused by
the repair work. Joseph Orlando, the vice president for sup-
port services, testified about an incident which resulted in the
engineering department working together with employees in
other departments of the hospital. A flood in a janitor’s clos-
et was observed by a security guard who notified the house-
keeping department, whose housekeepers cleaned the area.
Maintenance employees from the engineering department and
plumbers removed rags which were forced into the drain,
causing the flood.
Further, the HVAC group employees work in proximity to
the food service employees, at times working on ducts in the
kitchen area. Indeed, there is a schedule whereby one HVAC
mechanic is assigned to report to the supervisor of food serv-
ice every day. That mechanic services all the problems in the
food service area. Similarly, the maintenance mechanic re-
ports to the parking lot each day at 4 p.m. to service the car
lifts.
Also, the HVAC employees occasionally need the assist-
ance of a security guard in order to gain entry to a physi-
cian’s apartment to repair a refrigerator or air-conditioner
there.
In addition, a HVAC mechanic makes regular rounds per-
forming preventive maintenance checks on refrigeration sys-
tems in the food service department.
The electricians have contact with other hospital employ-
ees, when they repair equipment and machinery throughout
the hospital. In addition, the housekeepers bring broken vacu-
um cleaners to the maintenance or electrical groups.
Orlando also testified to an incident where a corridor was
being painted, while at the same time the housekeepers
cleaned the corridor and electricians installed new lighting
fixtures.
The contact between members of the construction group
and other Respondent’s employees are not as frequent as
other employees in the engineering department, because the
construction group’s work usually takes place in vacant areas
697LONG ISLAND COLLEGE HOSPITAL
of the hospital, where they perform renovations and the
building of rooms.
Respondent adduced evidence to attempt to show that the
linen room worker who receives and distributes linens and
the inventory control person in the storeroom in the stores
and receiving department and the storeroom workers in the
dietary department who receive foodstuffs and deliver them
to kitchen workers have comparable responsibilities with the
storeroom clerk in the engineering department. Similarly, Or-
lando testified that sanitation workers in the kitchen depart-
ment who clean pots, pans, and trays had comparable duties
to the helpers in the engineering department, who help others
in their department. However, Orlando stated that those
kitchen employees’ duties were more in the nature of clean-
ing than assisting. A comparison was made between the
cycle cleaners who wash walls and the painters who paint the
walls.
Orlando also testified that the duties of the housekeeping
department’s groundskeepers who repair fencing are com-
parable to that of engineering department employees who
maintain the sidewalks. One incident was cited where they
worked together when oil spilled from an oil tank onto the
hospital’s lawn. While the boilerroom employees worked to
contain the spill, the housekeeping workers removed the sod
to limit the damage caused by the spill.
Respondent also argues that the qualifications, training,
and skills of maintenance workers, using simple handtools,
are comparable to those of housekeeping workers in the hos-
pital’s service unit who perform cleaning, vacuuming, and
floor buffing throughout the facility.
I. Area Practice
Joseph Orlando, the vice president for support services,
testified at the 1984–1985 hearing that two New York City
hospitals that he was familiar with, Flower Hospital and Beth
Israel Hospital, neither had separate units of maintenance and
engineering department employees. At Flower Hospital, a
small department of maintenance employees employed in the
engineering department were represented by Local 1199 in
one bargaining unit which included housekeeping employees.
At Beth Israel Hospital, maintenance employees in the engi-
neering department were represented by Local 1199 in a unit
which included housekeeping and food service workers. Or-
lando stated that he was not aware of any other hospital in
New York City in which engineering department employees
were represented by a union in a separate bargaining unit.
It should be noted in this connection that in 1979, a cer-
tification was issued to Local 1199 for a unit of service em-
ployees employed by Respondent, which expressly excluded
the maintenance and engineering employees, and in 1980,
Respondent entered into a collective-bargaining agreement
with Local 1199 covering employees in that unit.
Similarly, in 1981, Local 1199 was certified as the collec-
tive-bargaining representative of Respondent’s technical em-
ployees, which certification specifically excludes its service
employees and maintenance employees.
III. ANALYSIS AND DISCUSSION
A. The Collective-Bargaining Unit
The question here is whether the employees sought are an
‘‘identifiable group with a community of interest that is suf-
ficiently separate or distinct from the other . . . employees
to warrant separate representation.’’ Allegheny General Hos-
pital, 239 NLRB 872, 878 (1978).
In Garden City Hospital (Osteopathic), 244 NLRB 778
(1979), the Board explained that ‘‘in determining the appro-
priateness of a separate maintenance unit we would continue
to apply the traditional test for such units which includes
considering such factors as mutuality of interest in wages,
benefits, and working conditions; commonality of skills and
supervision; frequency of contact with other employees; lack
of interchange and functional integration; and area practice
and patterns of bargaining.’’
Here, the employees in the engineering department are dis-
patched to their jobs by their supervisors. Such employees
work in separate groups with supervisors directing their
work. Those supervisors report to the director of engineering.
Thus, there is separate supervision for such employees, as
compared with other hospital employees. All the maintenance
and engineering department workers have their own shop
area in the basement of one of Respondent’s buildings, with
their own locker room area.
Although the maintenance and engineering employees,
with the exception of the boilerroom personnel, spend the
vast majority of their time outside their shop, performing
tasks around the hospital, their contact with other nonmainte-
nance and engineering department employees is limited to re-
ceiving information concerning the repairs required on cer-
tain equipment, and clearing areas prior to performing their
duties. Although it is true that one employee’s job is to take
care of the dietary department’s daily repair needs, and he
reports to that area’s supervisor, and another reports to the
parking lot daily, this is not the case with other maintenance
and engineering employees. They remain under the super-
vision of their group supervisor. In addition, although a su-
pervisor outside the engineering department must sign off on
work performed by these employees, the engineering depart-
ment is responsible for the proper performance of the work
by such employees, its supervisors direct their work, and dis-
cipline is instituted by the engineering department.
There are no temporary transfers between employees in
the engineering department and employees outside that de-
partment. Permanent transfers have been limited. In the past,
there have been four permanent transfers of employees into
the department from positions outside that department.
The employees in the engineering department possess
greater skills than those outside the department or are helpers
or assistants to those possessing greater skills. Although Re-
spondent adduced evidence that certain service unit employ-
ees may possess similar skills and perform similar duties as
the maintenance workers and laborer; nevertheless, such en-
gineering department employees work exclusively for the en-
gineering department, assisting the higher skilled employees
in performing engineering department functions.
The wage rates received by employees in the maintenance
and engineering department are generally higher, and in the
case of the ‘‘A’’ categories, much higher than those in the
service unit.
Although the employees in the engineering department
enjoy many of the same benefits, such as holidays, vacation
pay, cafeteria availability, and other benefits as other nonunit
employees, this aspect of commonality cannot outweigh the
698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other factors, set forth above, which distinguish the engineer-
ing department employees from others. Similarly, Respond-
ent’s evidence of area practice in which no other New York
City hospital had a separate maintenance and engineering
employees’ unit, but rather had units of such employees en-
compassed within units of service department employees,
food service workers, and housekeeping employees, is some-
what different than the situation at Respondent’s facility,
where separate units of service department employees were
specifically excluded the employees at issue here. The Gen-
eral Counsel argues that Respondent’s voluntary and ‘‘histor-
ical exclusion’’ of the maintenance and engineering depart-
ment employees from the service unit precludes it from argu-
ing that a separate unit of maintenance and engineering em-
ployees is inappropriate, and that such employees properly
belong in the service unit. I reject the General Counsel’s ar-
gument. Had Respondent sought to include the maintenance
and engineering department employees in a broader collec-
tive-bargaining unit sought by Local 1199, it would undoubt-
edly have been faced with an unfair labor practice charge by
Local 144 which had been determined by the Board, both in
an unfair labor practice case, and by certification, to be the
exclusive collective-bargaining representative of these em-
ployees,
I, accordingly, find and conclude that the employees in the
collective-bargaining unit alleged here share a separate com-
munity of interest, and that the unit alleged is an appropriate
collective-bargaining unit.
Furthermore, the Board’s Final Rule sets forth as an ap-
propriate collective-bargaining unit ‘‘all skilled maintenance
employees.’’
In its second proposed notice of rulemaking, the Board,
considered and rejected arguments similar to that raised by
Respondent—that the employees alleged here belong in an
overall service department unit—because their skill levels oc-
casionally do not exceed those of other service and mainte-
nance employees and that they work throughout the hospital
and have frequent contact with other employees and for other
reasons. However, the Board, having considered those argu-
ments, nevertheless decided that a separate unit of skilled
maintenance employees was appropriate.
The Board also decided that such a unit ‘‘should generally
include all employees involved in the maintenance, repair,
and operation of the hospitals’ physical plant systems, as
well as their trainees, helpers, and assistants.’’ 284 NLRB
1562.
Accordingly, the collective-bargaining unit alleged here is
appropriate under the Board’s Final Rule.
B. The Violation
Respondent’s answer admits, and I find and conclude, that
since on or about October 1, 1980, Respondent has refused,
and since that date has continued to refuse, to recognize and
bargain collectively with Local 144 as the exclusive collec-
tive-bargaining representative of Respondent’s employees in
the certified, appropriate collective-bargaining unit.
C. Delay and Turnover
Respondent argues that even assuming the alleged collec-
tive-bargaining unit is found to be appropriate, a bargaining
order should not be issued because of the length of time
since the certification of this unit and the extent of turnover
experienced in the unit.
When an employer refuses to bargain with a union while
pursuing its right to judicial review, the certification year
‘‘commences on the date of the parties’ first bargaining ses-
sion following final affirmance of the Board’s order.’’ Van
Dorn Plastic Machinery Co., 300 NLRB 278 (1990). Re-
spondent has, following the certification of Local 144, con-
tinuously refused to bargain with it. Accordingly, the certifi-
cation year has not yet begun.
Absent unusual circumstances, the certified union enjoys
an irrebuttable presumption of majority status during its cer-
tification year. Brooks v. NLRB, 348 U.S. 96, 98, 104 (1954).
Respondent argues that unusual circumstances are presented
here, in view of the 13-year period since the certification was
issued. Respondent also argues that of the 56 employees cur-
rently employed in the unit, only 20 of those were employed
at the time of the election, further casting doubt on the reli-
ability of the presumption of the majority status of Local
144.
In NLRB v. Star Color Plate Service, 843 F.2d 1507
(1988), the Second Circuit Court of Appeals affirmed its Pat-
ent Trader rationale. NLRB v. Patent Trader, Inc., 426 F.2d
791 (2d Cir. 1970). In Patent Trader, the court found that
there was both passage of time and ‘‘repudiation of the union
by a majority of the employees, but nevertheless enforced the
Board’s bargaining order, noting that the union had been cer-
tified and that requiring still another Board election in such
a situation undermines the central purpose of the National
Labor Relations Act, since it gives an employer an incentive
to disregard its duty to bargain in the hope that over a period
of time a union will lose its majority status. 426 F.2d at 792.
Similarly, in Glomac Plastics v. NLRB, 592 F.2d 94
(1979), the Second Circuit Court of Appeals, noting that 6
years had passed since the certification of the union, 4-1/2
years of which were attributable to Board delay, nevertheless
affirmed the Board’s bargaining order remedy.
In Star Color Plate, supra, the Second Circuit Court of
Appeals critically noted that more than 5 years had elapsed
between the certification of the union and the Board’s find-
ing of a violation. The court nevertheless enforced the
Board’s bargaining order, but also ordered the Board to no-
tify the current employees of their statutory right to petition
for a decertification election.
Respondent’s reliance on NLRB v. Connecticut Founding
Co., 688 F.2d 871 (2d Cir. 1982), and NLRB v. Nixon Gear,
Inc., 649 F.2d 906 (2d Cir. 1981), is misplaced. Both cases
were distinguished by the Second Circuit Court of Appeals
in Star Color Plate, supra, 843 F.2d at 1509, on the grounds
that in both, the Board had improperly failed to hold hear-
ings on ‘‘prima facie valid post-election challenges filed by
the employers, which, if upheld, would have required the set-
ting aside of the . . . elections.’’
I accordingly find and conclude that a bargaining order is
an appropriate remedy here.
CONCLUSIONS OF LAW
1. The Respondent, The Long Island College Hospital, is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act and a health care institu-
tion within the meaning of Section 2(14) of the Act.
699LONG ISLAND COLLEGE HOSPITAL
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Local 144, Hotel, Hospital, Nursing Home and Allied
Services Union, Service Employees International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The following employees of the Respondent constitute
a unit appropriate for the purposes of collective 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 department, ex-
cluding chief engineers, assistant chief engineers, clerk
and maintenance supervisors, as defined in Section
2(11) of the Act.
4. At all times material, Local 144 has been the exclusive
collective-bargaining representative of the employees in the
unit described above.
5. Since on or about October 1, 1980, by failing and refus-
ing to recognize and bargain collectively with Local 144 as
the exclusive collective-bargaining representative of the em-
ployees in the unit described above, Respondent has violated
Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
I shall recommend that Respondent be ordered to bargain
collectively with Local 144 as the exclusive collective-bar-
gaining representative of the employees in the certified, ap-
propriate collective-bargaining unit, set forth above. Inas-
much as Local 144 has not yet enjoyed its certification year,
I shall recommend that the initial certification year be ex-
tended as if it had not expired.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, The Long Island College Hospital,
Brooklyn, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and, on request, bar-
gain collectively with Local 144, Hotel, Hospital, Nursing
Home and Allied Services Union, Service Employees Inter-
national Union, AFL–CIO as the exclusive collective-bar-
gaining representative of its employees in the following cer-
tified, appropriate collective-bargaining unit:
All full-time and regular part-time employees in the
maintenance of plant and engineering department, ex-
cluding chief engineers, assistant chief engineers, clerk
and maintenance supervisors, as defined in Section
2(11) of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain in good faith with
the Union as the exclusive collective-bargaining representa-
tive of its employees in the certified unit found appropriate
respecting rates of pay, hours of work, or other terms and
conditions of employment and, if an understanding is
reached, embody it in a written and signed agreement. The
Union’s certification year shall extend 1 year from the date
that such good-faith bargaining begins.
(b) Post at its Brooklyn, New York facility copies of the
attached notice marked ‘‘Appendix.’’5 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 29 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to recognize and, on request,
bargain collectively with Local 144, Hotel, Hospital, Nursing
Home and Allied Services Union, Service Employees Inter-
national Union, AFL–CIO as the exclusive collective-bar-
gaining representative of our employees in the following cer-
tified, appropriate collective-bargaining unit:
All full-time and regular part-time employees in the
maintenance of plant and engineering department, ex-
cluding chief engineers, assistant chief engineers, clerk
and maintenance supervisors, as defined in Section
2(11) of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL recognize and, on request, bargain in good faith
with Local 144, Hotel, Hospital, Nursing Home and Allied
Services Union, Service Employees International Union,
AFL–CIO as the exclusive collective-bargaining representa-
tive of our employees in the certified unit found appropriate
respecting rates of pay, hours of work, or other terms and
conditions of employment and, if an understanding is
reached, embody it in a written and signed agreement.
THE LONG ISLAND COLLEGE HOSPITAL