Southern Baptist Hospitals, Inc.

National Labor Relations Board - Board Decisions

Jun 20, 1979

242 N.L.R.B. 1329 (N.L.R.B. 1979)

SOUTHERN BAPTIST HOSPITALS. INC.
Southern Baptist Hospitals, Inc. and International
Union of Operating Engineers, Locals 226 & 266A,
AFL-CIO, Petitioner. Case 15-RC-6219
June 20, 1979
DECISION ON REVIEW AND DIRECTION OF
ELECTION
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On April 3, 1978, the Acting Regional Director for
Region 15 issued his Decision and Order dismissing
the petition in the above-entitled proceeding, on the
grounds that the petitioned-for unit for engineering
and maintenance department employees at the Em-
ployer's hospital was inappropriate. Thereafter, in ac-
cordance with Section 102.67 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Petitioner filed a timely request for re-
view alleging that the Acting Regional Director erred
in his finding. The Employer filed a statement in op-
position. On May 25, 1978, the National Labor Rela-
tions Board by telegraphic order granted the Petition-
er's request for review. Subsequently, the Employer
filed a brief supporting the Acting Regional Direc-
tor's decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the entire record in this
case with respect to the issue under review, including
the various briefs filed by the parties, and makes the
following findings:
The Employer operates a nonprofit hospital in
New Orleans, Louisana. The maintenance unit
sought by the Petitioner consists of engineering em-
ployees: six engineers, six engineer assistants, two
utility men, two yardmen, and one compactor com-
pressor; and maintenance employees; eight mechan-
ics, five painters, one plumber, one carpenter, one
electrician, one electrical helper, one storekeeper, and
one laborer.
The Employer's engineering and maintenance em-
ployees constitute a distinct department apart from
other service departments. These employees are ex-
clusively supervised by the department director and
his two assistants. In recent years there have been few
transfers into the department from other service de-
partments.
Although the Employer does not seek skilled
craftsmen for engineering and maintenance depart-
ment positions, it appears that maintenance employ-
ees are generally more skilled than service employees.
Approximately one-quarter of them are licensed: six
engineers hold second-class licenses (a municipal re-
quirement); two engineer assistants hold third-class
licenses; and the plumber is licensed. Many of the
department's employees came to the hospital with vo-
cational training and substantial experience: one me-
chanic had 2 years' vocational experience in wood-
working and sheet metal together with 5 years' work
experience in telephone installation, oil field equip-
ment maintenance, and television repair; one utility
man had electrical engineering training as well as 3
years' work experience in carpentry and minor elec-
trical maintenance; the electrician holds an associate
degree in electrical engineering and had many years
experience in electrical work. Furthermore, work in
the Employer's engineering division provides on-the-
job training adequate for obtaining the second-class
license.
The engineering and maintenance employees are
responsible for work requiring some degree of skill-
a preventive maintenance program coupled with spe-
cial tasks. For example, the engineers monitor the
boilers, pumps, and air-conditioning system; the elec-
trical workers maintain electrical outlets and light fix-
tures and do some rewiring-on occasion replacing
gears, bushings and bearings, armatures and trans-
formers and assembling the components according to
diagram; the mechanics repair electrical beds, plumb-
ing fixtures, wall plugs, and utensils such as dishwash-
ers; the painters repair and patch holes, paint walls
and trim, plaster, and occasionally refinish wood-
work; maintenance employees have also removed
walls and installed ceiling partitions. The Employer
contracts out all major maintenance and repair work.
When responsible for the boilers, the engineers are
isolated in the boiler room. On the other hand, when
engineers rotate into maintenance positions, they join
the other maintenance employees in spending consid-
erable worktime throughout the hospital. Inevitably
there is contact between the maintenance employees
and other service employees. Such contact does not,
however, constitute integration of the Employer's ser-
vice and maintenance positions but results from the
"work order" system in operation at the Employer's
hospital. A service employee may sometimes assist a
maintenance employee but usually this involves un-
skilled work incidental to the primary activity of the
respective employees.
The service and maintenance employees are subject
to centralized personnel policies and receive common
fringe benefits. The record is inconclusive about the
respective wages paid maintenance employees, on the
one hand, and service employees, on the other hand,
although it appears that engineering and mainte-
nance employees are more likely to receive higher
wages. Moreover, we are persuaded that the commu-
nity of interest the engineering and maintenance em-
242 NLRB No. 192
1329
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees share with each other is more directly estab-
lished by the discrete nature of the work they perform
in common with one another than by the rate of re-
muneration set by this Employer for service and
maintenance employees.
In Alleghen, General Hospital, 239 NLRB 872
(1978), the Board, after reviewing the legislative his-
tory underlying the health care amendments to the
Act and the Board's unit determinations in this area,
concluded that hospital maintenance employees may
constitute an appropriate bargaining unit. Further-
more, in making this determination a majority of the
Board stated that it will continue to rely on the tradi-
tional community-of-interest test, as established in
American Cvanamid Company, 131 N LRB 909 (1961 ).
See Allegheny General Hospital, supra. In our opinion,
the application of this standard to the record in this
case warrants the establishment of a separate bar-
gaining unit limited to the Employer's engineering
and maintenance department employees.
Under the circumstances detailed above, we find
that the engineering and maintenance employees
share a community of interest sufficiently separate
and distinct from the broader community of interest
which they share with service employees to warrant
their representation as a separate bargaining unit. In
so concluding, we note particularly that the employ-
ees sought by the Petitioner are established in a sepa-
rate department having independent supervision.
These employees perform varied and typical mainte-
nance work for the hospital exercising the particular
skills required by this function. Furthermore, in the
exercise of this function there is minimal interchange
and functional integration between maintenance em-
ployees and service employees.'
Contrary to our dissenting colleague, we do not
adopt the view that separate representation should be
afforded maintenance and engineering department
employees such as exist here only where "they possess
an exceptionally high degree of community of interest
among themselves." In our view, to require such a
standard for those performing the traditional mainte-
nance trades for hospitals goes far beyond the con-
cern of Congress against undue proliferation. As set
forth above, we feel that sufficient basis exist here for
finding that the Employer's organizationally struc-
tured engineering and maintenance department em-
ployees constitute a separate identifiable group, per-
forming the functions of the department for which
they were employed, and sharing a sufficiently dis-
tinct separate community of interest among them-
selves to warrant a separate unit for representation.
I See also Long College Hospital, 239 NLRI 1135 (1978) (supplementing
228 NLRB 83).
Although the dissent stresses that the Employer
does not require applicants for employment in the
department to have licenses or certificates or formal
training, the record clearly demonstrates that the six
engineers are required to be licensed by the Orleans
Parish: the fact that these licenses are governmentally
required does not render the skills possessed by the
holders any the less. The Employer recognizes and
rewards the employees when they achieve such li-
censes by increasing their hourly wage, and the Em-
ployer could not fill its engineer positions with unli-
censed personnel.
Apart from the engineering personnel, the record
shows that the employees performing maintenance
mechanic duties, painting, carpentry work, and elec-
trical work generally possess considerable prior expe-
rience in their respective trades, including on-the-job
training as well as vocational training. They use tradi-
tional tools of their trades, such as socket wrenches,
box hand wrenches, drills, etc. The dissent's state-
ment that employees in other departments "often per-
form similar or identical maintenance and engineer-
ing tasks" does not withstand close scrutiny. The
most that the record shows is that housekeeping su-
pervisors or their assistant supervisors at times make
minor repairs in order to accommodate patients or to
avoid inconvenience or time loss by utilizing the
maintenance department. There is no showing that
employees in other departments perform the wide
range of specialized functions of the petitioned-for
employees. It is also evident that the Employer, in
advertising for various available positions in the
maintenance and engineering department, is offering
the rate of $6.50 per hour for operating engineer, re-
frigeration mechanic, class C plumber, and mainte-
nance mechanic. Such at rate generally exceeds those
in housekeeping, dietary, laundry, and other typical
service departments.
We do not deem it controlling, or even significant,
that the Employer contracts out major and compli-
cated repair work. With today's sophisticated devices,
it would be highly unusual for any factory or hospital
to possess in-house capability or equipment for such
repairs.2 Overall, we are satisfied that the employees
sought by the Petitioner, although performing a wide
range of tasks, some more skilled than others, consti-
tute the kind of separate department of maintenance
and engineering employees not atypical of hospitals
of this size, which has the degree of separate identity
to warrant a separate unit finding.
Accordingly, we find contrary to the Acting Re-
gional Director, and for the reasons set forth in Alle-
gheny General Hospital, supra, that the following em-
ployees constitute a unit appropriate for the purpose
2 See, e.g., Faulkner Hospital. 242 NLRB 47 (1979).
1330
SOUTHERN BAPTIST HOSPITALS. INC.
of collective bargaining within the meaning of Section
9(b) of the Act:
All engineering and maintenance employees em-
ployed by the Employer at its New Orleans,
Louisiana, hospital, excluding all other employ-
ees, and supervisors as defined by the Act.
[Direction of Election3 omitted from publication.]
MEMBER PENELLO, dissenting:
Contrary to my colleagues, and in agreement with
the Acting Regional Director, I would dismiss this
petition for a unit limited to the Employer's engineer-
ing and maintenance department employees.
In Allegheny General Hospital, 239 NLRB 872
(1978), the majority concluded that traditional com-
munity-of-interest principles alone should be used to
determine appropriate units in health care institu-
tions, notwithstanding the congressional mandate
against the proliferation of bargaining units in such
facilities.4 The Allegheny majority also decided that
the test set forth in American Cyanamid Company, 131
NLRB 909 (1961), for judging the appropriateness of
separate maintenance employee units in industrial
plants should likewise be applied in considering re-
quests for units confined to maintenance employees
in health care facilities.
I dissented in Allegheny General Hospital on the
ground that to employ exclusively traditional criteria
of unit determination in health care institutions
would ignore the deep legislative concern expressed
about unit fragmentation in this unique industry.
Thus, I concluded that separate representation, apart
from all professional or nonprofessional employees,
should be accorded groups of health care employees
only where it is shown that they possess an exception-
ally high degree of community of interest among
themselves. To impart concrete meaning to this stan-
dard as regards petitions for hospital maintenance
employee units in particular, I quoted in my Alle-
gheny dissent from my concurring opinion in St. Vin-
cent's Hospital, 223 NLRB 638, 639-640 (1976),
where I described the circumstances under which
such a unit may be granted:
.. a craft maintenance unit may be appropriate
when, viewed in light of all the criteria tradition-
ally considered in determining the appropriate-
ness of maintenance units generally, its establish-
ment does not conflict with the congressional
mandate against proliferation of bargaining units
Excelsior fn. omitted from publication.
4 S. Rept. 93-766, 93d Cong.. 2d sess. 5 (1974). "Legislative History of the
Coverage of Nonprofit Hospitals Under the National Labor Relations Act,
1974" (hereinafter Leg. Hist.) at 12; H. Rept. 93 1501. 93d Cong.. 2d sess. 6-
7 (1974), Leg. Hist.. supra at 274-275.
in the health care industry. This standard, which
is a more rigid one than is applied in other indus-
tries, can be met when the unit sought . . . is
composed of licensed craftsmen engaged in tra-
ditional craft work, which is performed in a sepa-
rate and distinct location apart from other em-
ployees in the health care facility. Normally,
such employees do not perform other services
throughout the health care facility ... and there
is, at most, minimal transfer or interchange to
and from the craft unit.
Perusal of the facts in this case shows plainly that,
under the foregoing test, the Employer's engineering
and maintenance employees do not share anything
approaching the unusually high degree of community
of interest necessary to qualify for separate represen-
tation. Indeed, I doubt whether the evidence devel-
oped at the hearing satisfies even the majority's
routine community-of-interest standard, properly ap-
plied, for granting such a unit.
The unit requested by the Petitioner consists of 17
engineering employees, 6 engineers, 6 engineer assis-
tants, 2 utility men, 2 yardmen, and I compactor
compressor; and 19 maintenance workers, 8 mechan-
ics, 5 painters, I plumber, I carpenter, I electrician, I
electrical helper, I storekeeper, and I laborer. In
evaluating the proposed unit, I will consider in turn
each of the major factors having a bearing upon its
appropriateness.
Skills. My colleagues concede that the Employer
"does not seek skilled craftsmen for engineering and
maintenance department positions." This proves to
be an understatement. Not only does the Employer
not require applicants to hold licenses,5 to hold certi-
fications of any kind, to have formal or vocational
training, or to have any particular skills or qualifica-
tions, not even previous experience is demanded. In
actual fact, none of the current engineering and main-
tenance employees has achieved even journeymen
level status. The employees in the petitioned-for unit
typically perform only routine, uncomplicated, gen-
eral maintenance work, and employees in other de-
partments often perform similar or identical mainte-
nance and engineering tasks. Thus, it is not suprising
that the Employer contracts out its major and compli-
cated engineering and maintenance work, because of
the lack of experience or skill of its own employees,
because they do not possess legally required licenses,
or because of the lack of necessary tools. The Acting
Regional Director therefore properly found that these
employees did not constitute a group of skilled crafts-
men who perform traditional craft work.
Wages, bencfits, and working conditions. The Em-
Although the six engineers and the plumber have licenses, these licenses
are required by the citN of New Orleans. not b the Employer.
1331
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's wage range for its nonprofessional employees
varies from $2.95 to $8 an hour. All nonprofessional
job classifications have a minimum starting wage rate
of $2.95 per hour: only one employee, however, the
plumber, receives $8 an hour. Contrary to the major-
ity's speculative statement that "engineering and
maintenance employees are more likelyv to receive
higher wages" (emphasis supplied). I regard the Act-
ing Regional Director's comment on this issue as a
fair characterization of the evidence: "Excluding the
plumber, the engineering and maintenance employee
wage rates are compatible in range and amount with
all other hourly employees."
All of the nonprofessional employees of the Em-
ployer are subject to the same labor relations and per-
sonnel policies, are paid on a biweekly basis, and
have received general wage increases uniformally for
the last 3 years. All full-time, permanent, nonprofes-
sional employees are eligible for identical fringe bene-
fits, including medical and life insurance, retirement
benefits, vacations and holidays, sick leaves, and
leaves of absence, educational reimbursement, phar-
macy, cafeteria, and parking discounts, and employee
day nursery and apartment availability privileges.
The Employer enforces uniform disciplinary rules
against all employees and has a hospitalwide griev-
ance procedure to resolve complaints by employees.
Finally, most employees, whether or not in the engi-
neering and maintenance department, work in shifts
on a 24-hour basis.
Contact with other employees: Most engineering and
maintenance tasks are performed "on site" in various
areas of the hospital, rather than in the department
itself. Consequently, maintenance employees spend
about 95 percent, and engineering employees about
25 percent, of their time carrying out their duties
throughout the hospital complex, which brings them
into frequent, daily contact with employees in differ-
ent job classifications in various departments, includ-
ing housekeeping, pathology, respiratory care, die-
tary, nursing, laundry. parking ramp, purchasing,
radiology, blood bank, pharmacy, admitting, and
mail and information employees. Futhermore, em-
ployees from other departments often prepare the
areas or locations for work to be performed by main-
tenance workers, assist them in doing the work, and
help clean up afterwards.
Transfir arid interchange.' Apparently only one em-
ployee has transferred into the engineering and main-
tenance department. However, the Employer has a
hospitalwide job transfer and job posting policy un-
der which, where ability is equal, a transfer is given
based upon overall seniority, not departmental se-
niority. There is also significant interchange of main-
tenance duties among nonprofessional employees.
Supervision: Engineering and maintenance employ-
ees are separately supervised.
Collective-bargaining hi.storV and area practice and
patterns of collective-bargaining. There is no history of
collective bargaining involving the employees in the
proposed unit, nor is there any relevant area practice
or pattern of collective bargaining.
To sum up, the overall picture of the requested unit
drawn by these facts is that of a group of unskilled
employees who spend most of their time performing
simple and routine maintenance functions throughout
the hospital, coming into frequent, substantial, and
daily contact with other employees, and who receive
wages similar to and fringe benefits identical to those
of other nonprofessional employees. Such a unit is
not appropriate under any standard of community of
interest which takes into account congressional con-
cern about hospital unit proliferation and is likely in-
appropriate under the prevailing industrial commu-
nity-of-interest test.
In view of these facts, as well as for the reasons
given herein and in my dissent in Allegheny General
Hosital, I dissent from my colleagues' decision to re-
verse the Acting Regional Director and to grant the
petitioned-for unit.
1332