Peninsula Hospital Center

National Labor Relations Board - Board Decisions

Jul 15, 1975

219 N.L.R.B. 139 (N.L.R.B. 1975)

PENINSULA HOSPITAL CENTER
Peninsula Hospital Center and Peninsula General
Nursing Home Corp., Employer-Petitioner and
District 1199, National Union of Hospital and
Health Care Employees, RWDSU, AFL-CIO.
Case 29-UC-55
July 15, 1975
DECISION AND ORDER
This decision arises from a petition for clarifica-
tion of a unit duly filed by Peninsula Hospital Center
and Peninsula General Nursing Home Corp. on Sep-
tember 18, 1974. A hearing was held on October 15,
17, 21, and 25, 1974, before Hearing Officer Richard
Epifanio. On December 11, 1974, the Regional Di-
rector for Region 29 issued an order transferring the
case to the Board for decision.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. Peninsula Hospital Center and Peninsula Gen-
eral Nursing Home Corp. are New York corpora-
tions having their principal places of business located
at Far Rockaway, New York. The parties stipulated,
and we find, that they have a common labor rela-
tions policy, and that they constitute a single employ-
er. The Employer is engaged in the operation of a
private, nonprofit, health care facility. It has a gross
annual revenue exceeding $1 million annually and
receives goods from outside the State of New York
having an annual value exceeding $50,000. The par-
ties stipulated, and we find, that the Employer is en-
gaged in commerce within the meaning of the Act.
We further find that it will effectuate the purposes of
the Act to assert jurisdiction herein.
2. The parties stipulated, and we find, that District
1199, National Union of Hospital and Health Care
Employees, RWDSU, AFL-CIO, is a labor organiza-
tion within the meaning of the National Labor Rela-
tions Act and is the currently recognized representa-
tive of various categories of employees: service and
maintenance, guards, clerical, technical, social work-
ers, and pharmacists.
3. The Employer does not question the status of
the Union as the bargaining representative of the em-
ployees in the categories described above. It alleges,
however, that "guards" perform the duties of
"guards" as described in Section 9(b)(3) of the Act,
and it has invoked the Board's clarification proceed-
ings for the purposes of clarifying its legal obliga-
tions, under the statute, to continue recognizing the
Union as the representative of any unit which in-
139
eludes its guards. Its petition defines the currently
recognized status of the Union as embracing all the
above-described employees in one single unit.
The Union does not concede that the Employer's
guards do in fact fall within this statutory definition
of "guards" contained in Section 9(b)(3) of the Act.
But it contends that, in any event, dismissal of the
petition is warranted on any one or more of the fol-
lowing asserted grounds-
(1) It currently represents guards as a separate and
distinct bargaining unit rather than a mixed unit of
guards and nonguards and there is therefore no unit
dispute of a kind appropriate for resolution via the
clarification route.
(2) The Employer is a member of the League of
Voluntary Hospitals and Homes of New York (here-
inafter the League),' which bargains with District
1199 on a multiemployer rather than on a single-em-
ployer basis and the Employer cannot appropriately
invoke the clarification procedure herein without the
consent of the other parties.
(3) The instant petition should be dismissed as un-
timely because, as a result of the negotiations con-
ducted by and between the League and the Union
and culminating in a contract agreed to on or about
July 26, 1974, some 2 months before the instant peti-
tion was filed the Employer became bound by that
contract-one covering its represented employees
(including guards) as of October 1, 1974.
For the reasons hereafter set forth, we find, con-
trary to the Union, that the Employer's clarification
request should be granted.
As a threshold matter, we find, in accord with the
Employer's position, that the employees classified as
"guards" fall within the statutory definition of the
quoted term. The undisputed evidence plainly estab-
lished that the individuals so classified by the Em-
ployer do in fact "enforce against employees and
other persons rules to protect property of the Em-
ployer [and] to protect the safety of persons on the
Employer's premises."
We have, of course, frequently held that given an
appropriately filed petition by any interested party
this Board may properly effect the exclusion of
guards from any recognized mixed unit of guards
and nonguards via the clarification route.' The
Union contends the result should be otherwise in this
case. Giving due consideration to the contentions of
the Union, we nonetheless find these decisions appli-
cable herein. We discuss the Union's contentions se-
riatim.
The League was invited to but did not become party to the instant
proceeding
2 Worcester Polytechnic Institute, 207 NLRB 1061 (1973), Libbey-Owens-
Ford Glass Company, 169 NLRB 126 (1968), Sonotone Corporation, 100
NLRB 1127 (1952)
219 NLRB No. 21
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
First, we find no persuasive evidence to support
the Union's claim that the Employer's current bar-
gaining relationship with it is conducted on the basis
of unit lines which separate the "guards" from all
other employees. The relevant facts establish that the
Union achieved its representative status in 1964 as a
result of a privately supervised election in which the
Employer's guards and nonguard employees voted as
one group. For a number of years thereafter the par-
ties admittedly treated all such employees as one sin-
gle bargaining unit. But, according to the Union, the
parties changed the unit structure in 1969 and again
in 1970. Pointing to certain "unit" language inserted
in the 1969 contract the Union asserts that the parties
then agreed to separate the represented employees
into three bargaining units, respectively, captioned
service and maintenance employees, technical em-
ployees, and clerical employees. Further in 1970, the
parties established three additional units, one con-
fined to guards, and the other two to social workers
and pharmacists, respectively. However other evi-
dence tends to indicate that this language was not
intended to define unit lines, but rather to list the job
categories of all represented employees who, as not-
ed, are admittedly organized as a single unit. We
note, in this respect, that no separate negotiations
have ever been conducted for any one portion of the
represented employees, and that the wage rate for
guards is listed in the most recent agreement which
Peninsula has signed under a schedule titled "Service
and Maintenance." We note also that all employees,
including guards, joined in a strike conducted in
1973 as if in a single unit.
In the above circumstances, it may well be that the
guards here in question have been and are bargained
for as part of a mixed unit of guards and nonguards.
In any event, we have some doubts where the outside
parameters of the unit in which they are included
begin and end. Resolution of that doubt is not essen-
tial where, as here, the only determination we are
called upon to make is one excluding guards from
any unit or units in which the parties currently main-
tain their bargaining relationship. If, in fact, the
guards are already represented in a unit separate
from that of other employees, our decision here is
merely a reaffirmation of the propriety of the guards'
exclusion from that other unit or units.
To the extent that the remaining contentions of the
Union question the Employer's standing to file the
petition, we find those contentions unpersuasive. The
direct and immediate interests of the Employer in the
unit status of its guard employees make it an interest-
ed party to the proceeding involved herein. And its
standing to obtain the relief it seeks through this peti-
tion is not, in our view, negated by the fact that it is
a member of the League of Voluntary Hospitals and
has authorized the League to bargain with the Union
in its behalf on some, if not all, mandatory subjects
of bargaining. In so finding, we are mindful of the
Union's claim that-because of the authorization
granted by the Employer to the League and the
League's conduct of its bargaining on behalf of all its
members at one time-all the Employer's employees
for whom the Union is the recognized agent are now
part of a multiemployer unit extending in scope to all
employer-members of the League. However, we need
not decide the factual merit of this union claim. The
League has not objected to the Employer's petition,'
no other of its members has expressed any interest in
intervening in the matter,4 and grant of the
Employer's petition could neither add to nor detract
from the right of any other employer who is a mem-
ber of the League to maintain the status quo in con-
ducting its relationship with the Union.5
The final contention of the Union is that a grant of
the requested clarification would be contrary to the
holding in Wallace-Murray Corporation, 192 NLRB
1090 (1971)-a case in which we dismissed an
employer's clarification petition seeking the exclu-
sion of guards from an historically recognized unit
including other employees where the petitioner-em-
ployer: (a) filed its petition midway between the term
of an agreement effective for a 2-year period; and (b)
had entered into that contract despite the facts estab-
lishing its awareness that it had the statutory privi-
lege to discontinue according the union recognition
so long as it insisted on representing the guards as
well as the nonguard employees. The Union argues
that case is applicable because the League and the
Union agreed to a master contract purporting to cov-
er the employees here in issue on July 26, 1974, and
this petition was not filed until some 2 months later
on September 18, 1974. However, the prior contract,
as it applied to Peninsula, did not expire until Octo-
ber 1, 1974, and the new contract did not apply to
Peninsula until that date. Hence, the instant petition
was filed shortly before the expiration of the last ap-
plicable collective-bargaining agreement. Moreover,
the new health care amendments to the Act did not
become effective until August 25, 1974; no UC peti-
7
The League was served with notice but did not avail itself of the oppor-
tunity then afforded it to intervene in this proceeding Furthermore, the
League's president appeared at the hearing as a witness, and at that time
exWressed no opposition to the grant of the Employer's petition
We note , however , that some 5 months after this proceeding was trans-
ferred to the Board the League and Brookdale Hospital Medical Center
requested to file briefs amicus curiae By telegram dated June 6, 1975, the
Board's Executive Secretary denied their requests on the ground that to
permit the filing of such briefs would unduly delay the Board's decision
5 See Anheuser-Busch, Inc, 116 NLRB 1988, 1992 (1952)
PENINSULA HOSPITAL CENTER
tion could have been filed with the Board before this
date. The instant petition , as indicated , was filed
shortly thereafter , on September 18, 1974 . We believe
the procedure followed in Worcester Polytechnic In-
stitute, 207 NLRB 1061 ( 1973), and in Peerless Publi-
cations, Inc., 190 NLRB 658, 659 ( 1971), is applicable
to the facts herein and for the reasons stated in those
cases we shall exclude the guards from the unit of
employees recognized by the Employer.
ORDER
141
It is hereby ordered that the existing, recognized
unit of guards and nonguard employees employed by
Peninsula Hospital Center and Peninsula General
Nursing Home Corp ., and represented by District
1199, National Union of Hospital and Health Care
Employees RWDSU, AFL-CIO, be, and it hereby is,
clarified to exclude the job classifications of guards
as defined in the Act.