Trustee of University of Pennsylvania

National Labor Relations Board - Board Decisions

Feb 7, 1980

247 N.L.R.B. 970 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trustees of University of Pennsylvania ad Animal
Caretakers District Two, Petitioner. Case 4-RC-
13611
February 7, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBEtRS
PENII.I O ANI) TRUI SDAII
Upon a petition filed on March 27, 1979, pursuant
to Section 9(c) of the National Labor Relations Act, as
amended, a hearing was held before Hearing Officers
Henry Prolas on April 24, 1979, and James B.
Burkholder, Jr., on May 1, 8, 11, 14, 15, and 24, 1979.
Following the hearing and pursuant to Section 102.67
of the National Labor Relations Board Rules and
Regulations. Series 8, ias amended, tile Regional
Director for Region 4 transferred this procceding to
the Board in Washington, D.C., for decision. Thereaf-
ter both parties filed briefs. Additionally. tile oard
received letters or briefs submitted by Yale Uli\vcrsitl.
Stanford Universitl, anld the American Council oni
Educat ion.
I'ursuall to the provisions of Section 3(h) of the
National Labor Relations Act. a aended. tilhe
National Labor Relationls Ioard has dlegaIcted its
authority in this proceeding to a thIreememl1ber paicl.
The Board has reviewed the Hearing ()fficers'
rulings made at the hearing and finids tihat tl c are
free from prejudicial error. The Irulings al-c herch
affirmed.
Upon the entire record in this case the Board linds:
1. The Employer is a Pennsylvania corporation that
operates a private university with a medical center in
Philadelphia. The School of Medicine of the Universi-
ty of Pennsylvania, hereafter called Medical School,
was founded in 1765, the first in the United States.
Currently the Medical School is part of a "Medical
Center" that also includes the Children's Hospital of
Philadelphia and the Hospital of the University of
Pennsylvania, hereafter called HUP. Built in 1874,
HUP was the first hospital constructed by a university
for the purpose of educating medical students. Both
the Medical School and HUP are divisions within the
corporate structure of the University of Pennsylvania,
hereafter called University, which is run by Trustees.
Hence, the relationship between HUP and the Medical
School is governed by policies and procedures promul-
gated by the Trustees. Second to the Trustees in the
University's chain of command is a president, fol-
lowed by a provost and several vice presidents,
including the vice president for health affairs to whom
I Both the Medical School and HUP have a long-range planning committee
with some duplication of members to ensure coordination between the two
rfacilities.
247 NLRB No. 132
both the executive director of HUP and the dean of
the Medical School report.
Most schools and divisions in the University,
including HUIP and the Medical School, are distinct
"budget centers" with separate controllers and bud-
gets. However, income generated by various schools is
deposited in centralized university accounts. Sources
of funding for the Medical School include tuition,
research grants, state funds, patient care, gifts, and
endowments. HUIP is funded mainly through patient
care services and also froml gifts and cndowvmelts.
HUP's patient care services parallel departments in
the Medical School. In that regard. if an academic
department is added to thle Medical School's curricu-
lum. long-range p;lanning coninlittees are responsible
for establishinlg ilt;lIncousl. research and clinical
facilities to comnlplclcnl thle nie% department. Each of
tile 550 phl sicians on tlhe staff al HUI also holds a
facult v positiol i the Medical School and devotes
time Io taching. rsearch. and treating patients. A
Illdical board conlposed of Medical School faculty
mlcll. , llicl i required by the Joint Commission
for Accr-cditation of lHospitals, defines and implements
policies regarding patlicl care. All full-time physician
taci llt memberl,, participate in an organization within
thile Medical School called the Clinical Practices of the
tIlnI erit\ of Pennsylvania, hereafter called CPUP.
PItilents Itrealc;I at HUI are billed by CPUP under
a;mspics o the Medical School.
Thle Petitioner contends that the Employer is not a
health care iistitutiol. The Petitioner relies on Albany
.lldical Collt'gc oJ' Union University, 239 NLRB 853
(197X). where the Board (Chairman Fanning dissent-
ing) concluded that Albany Medical College is not a
health care institution because its primary purpose is
to train physicians and promote research. The Em-
ployer, on the other hand, contends that it is a health
care institution. It argues that while the primary
purpose of a medical school is to educate, and the
primary purpose of a hospital is to treat patients, one
is not secondary to the other when the two facilities
are joined, as here, to form a "medical center." The
Employer argues that the Medical School is directly
involved in patient care because it maintains diagnos-
tic facilities and equipment not duplicated in HUP,
and establishes and implements patient care programs
offered at HUP. Further, the Employer argues that
Albany Medical College is distinguishable since Alba-
ny Medical College and Albany Medical Center
Hospital lacked the common ownership, governance,
and close coordination evident between the Medical
School and HUP. Assuming arguendo that Albany
Medical College is not distinguishable, it avers that
Albany Medical College was wrongly decided.
970
TRUSTEES OF UNIVERSITY OF PENNSYLVANIA
Contrary to the Employer's assertions, we find that
under Albany Medical College the Employer is a
medical school and not a health care institution. Here,
as in Albany, the Medical School's primary purpose is
to educate rather than to provide medical services to
the community. The impetus for the decision by the
University to build HUP was that the Medical School
could not work closely enough with Philadelphia
General Hospital (then Pennsylvania Hospital). Thus,
although the Medical School's clinical programs
involve treatment of patients, the fact remains that the
clinical programs are auxiliary to the fulfillment of the
Medical School's primary educational mission. Ac-
cordingly, we find that the School of Medicine of the
University of Pennsylvania is not a health care
institution.'
During a 12-month representative period the Em-
ployer had gross revenues in excess of $1 million and
has purchased and received goods and services valued
in excess of $50,000 directly from sources located
outside the Commonwealth of Pennsylvania. We find
that the Employer is engaged in commerce within the
meaning of the Act.
2. The Petitioner's status as a labor organization is
contested by the Employer and Local 473, Interna-
tional Brotherhood of Firemen, Oilers, Powerhouse
Operators, and Maintenance Men, the Union that
currently represents the petitioned-for employees.'
Testimony establishes that the Petitioner has approxi-
mately 33 members who elect officers, and that it
exists for the purpose of representing employees with
respect to wages, hours, and working conditions.
Petitioner is a labor organization within the meaning
of Section 2(5) of the Act.
3. No question of representation exists concerning
the representation of certain employees of the Employ-
er within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.'
4. The Petitioner seeks to represent a unit of
approximately 32 Medical School utility men and
animal laboratory technicians in the medical laborato-
ry building and its anatomy chemistry wing, the
Richards Medical Research Building and the Robert
Wood Pavilion. The same unit has been represented
by Local 473 since 1968 when it was recognized
voluntarily by the Employer. The Employer disputes
' Chairman Fanning would find that the Employer is a health care
institution for the reasons set forth in his dissent in Albany Medical College. In
his iew, it is pointless to debate whether the educational, research, or patient
care mission is "primary" at a particular facility within a medical center
complex, particularly where, as here, every faculty member at the Medical
School is an attending physician at HUP. The effects of a work stoppage at a
medical schicl associated with a teaching hospital cannot he isolated from the
patients in that ho.spital. For example, a work stoppage by the animal
laboratory technicians il the unit sought would adversely affect not only
research projects, but also patients at HUP. ca;use aimals are needed in
some diagnostic techniques. Further, ,lboan Medical Col/hge involved a
significatllly different situation The Medical School and HIUP are part of the
the appropriateness of this unit despite its voluntary
recognition of another representative for the same
unit.
The animal laboratory technicians work under
direct supervision and maintain animal colonies of
rats, rabbits, hamsters, cats, giant clams, and mon-
keys. Graduation from elementary school is required
and some high school education is desirable. Senior
animal laboratory technicians perform the same work
as animal laboratory technicians, with less supervi-
sion, and are also responsible for preparing animals for
experimental operations and caring for sick animals.
Two years of high school is necessary and graduation
is preferred. All animal laboratory technicians wear
uniforms supplied by the University. The unit of all
the animal laboratory technicians sought falls within a
separately supervised administrative grouping known
as the Division of Laboratory Animal Medicine.
Employees in other job classifications occasionally
perform the duties of animal laboratory technicians
when additional help is necessary. The utility men are
separately supervised and perform various custodial
duties in laboratories. High school graduation is
requisite. They have contact with the animal laborato-
ry technicians when delivering mail, alcohol, or
animals to the animal colonies. All but one of the
petitioned-for employees work in the Medical School,
a series of buildings connected by corridors, not
geographically separate from the University. One of
the animal technicians in the unit maintains an animal
colony in HUP, next to the Medical School.
Unrepresented animal laboratory technicians in the
veterinary and dental schools, as well as in the
Medical School's departments of dermatology and
pathology, are not included in the petition. Also not
included in the petition are two animal laboratory
technicians who perform work in the reproductive
biology section in the Medical School.
All nonacademic university employees, including
those sought, are subject to standardized personnel
policies and employment practices promulgated by the
University's personnel office. All job vacancies are
submitted by university departments to the personnel
office for approval. Any employee may bid on
vacancies, routinely posted throughout the University
after approval by the personnel office. All applicants
same corporate structure, unlike Albany Medical College which cntracted
with a separate corporate entity for hospital space and services.
Local 473., International Brotherhood of Fireman. Oilers. Powerhouse
Operators. and Maintenance Men. hereafter called Local 473. wias permitted
to intervene in this proceeding at the hearing.
' Because he finds the Employer is a heallth care isiution, Chairman
Fanning would dismiss the petition as untimely since in health care
institutions petitions must be filed more than 90 days. but not over 120 days.
before the terminal date of a clontract. See Irliltr L. uliheruan Ilhspital, e aul.
218 NLRB 199 ( 1975). This peltition was filed 63 days before the June 1, 1979,
expiration of the Employer's coitract with Loc al 473.
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and resumes are screened, and final hiring decisions
are made by the personnel office. In addition to hiring
procedures, the personnel office administers policies
regarding wages, hours, probation, transfers, evalu-
ations, discipline, and grievances. All employees are
hourly paid on the same day with checks drawn on
"The University of Pennsylvania." They also receive
the same benefits, including sick leave, disability,
health and life insurance, vacations, holidays, pen-
sions, and education. A labor relations director has
responsibility for labor relations with all employees,
represented and unrepresented, throughout the Uni-
versity and its hospitals.
The unit sought is arbitrary grouping of approxi-
mately 32 nonprofessional employees at one school, to
the exclusion of similarly classified employees within
the same school. The unit is inappropriate under
' See Tuskegee Institute. 209 NLRB 773 (1974); Duke University. 200
NLRB 81 (1972): and LelandStfanfordJr. University, 194 NLRB 1210(1972).
Board precedent concerning bargaining units at col-
leges and universities.' In these circumstances, volun-
tary recognition of an arbitrary grouping of service
and maintenance employees is not sufficient justifica-
tion for splintering employees who have a common
community of interest, evidenced by centralized hiring
procedures, personnel policies, benefits, and labor
relations, and, in many instances, by the performance
of similar duties.
The Petitioner has not indicated a willingness to
proceed to an election in a larger unit. Therefore we
shall dismiss the petition.
ORDER
It is hereby ordered that the petition filed in Case 4-
RC-13611 be, and it is hereby is, dismissed.
972