# Petition — National Labor Relations Board v. Mercy Hospital Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1641%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 971 ## Text 79-1197 ‘ 7A ED No. } FEB BY 1980 §u the Supreme Court of the United Staten OCTOBER TERM, 1979 NATIONAL LABOR RELATIONS BOARD, PETITIONER Vv. MERCY HOospPITAL ASSOCIATION PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT WADE H. McCREE, JR. Solicitor Genera] Department of Justice Washington, D.C. 20530 WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Acting Associate General Counsel NORTON J. COME Deputy Associate General Councel LINDA SHER Assistant General Counsel LAWRENCE BLATNIK Attorney National Labor Relations Board Washington, D.C. 20570 INDEX Page AEE LR 1 NN SESS ETRE Ss ls 2 Gees See. .............. 2 SE 2 SEE TEES SS A 3 Reasons for granting the writ -....................-...- 11 Nec ec sesconensnnenenee 21 NI LSS XESS O R la Appendix B a 14a aca Sos calsneensecrecnonese 16a LARS a 29a ARE is 2 0 08s 42a ; CITATIONS Cases: Allegheny General Hospital v. NLRB, 239 N.L.R.B. No. 104, enforcement denied, : EE TE 11,18 American Broadcasting Co. v. Writers Guild of America, 437 U.S. 411 -~........... 19 American Cyanamid Co., 181 N.L.R.B. hacen cal aceeedouineitnowe 9 Beth Israel Hospital v. NLRB, 437 U.S. kiana vicina ctretienriniesenpanneres 3, 13, 19 P Extendicare of West Virginia, Inc., 203 SEES Eee 15 Ford Motor Co. v. NLRB, 441 U.S. 488.... 19 Four Seasons Nursing Center, 208 | N.L.R.B. 403 14 I Cases—Continued Long Island College Hospital v. NLRB, eS ER RIPEN yee ote eae Rae Memorial Hospital of Roxborough v. Nie, O65 2. oe NLRB v. Local 103, Iron Workers, 434 RARE arth RINE ee Or ee” AOR NLRB vy. St. Francis Hospital of Lyn- Seen ee ee ON oe NLRB v. West Suburban Hospital, 570 Ta aitanioe Packard Motor Car Co. v. NLRB, 330 I ea a, Pittsburgh Plate Glass Co. v. NLRB, 313 BN as aia cece cin St. Vincent’s Hospital v. NLRB, 567 F.2d BERT SECIS Tipe aad ee PERO tC OO Wheeler-Van Label Co. v. NLRB, 408 F.2d 613, cert. denied, 396 U.S. 834 -............. Woodland Park Hospital, Inc., 205 ER SAR a ee Statute: Labor Management Act of 1974, Pub. L. No. 93-360, 88 Stat. 395 ............00.......... National Labor Relations Act, 29 U.S.C. 151 et seq.: Section 8(a), 29 U.S.C. 158(a) ....... Section 8(a)(1), 29 U.S.C. 158(a) EE SRR Cs ore Section 8(a) (5), 29 U.S.C. 158(a) EEN ERE OO a neat ae NCE Section 8(b), 29 U.S.C. 158(b) ........ Section 8(e), 29 U.S.C. 158(e) ......... Section 8(g), 29 U.S.C. 158(g) ........ 12-13 14 OC —» —» OE i es Et Ill Statute—Continued Page Seen S, 29 U.S0). 180 ................... 13 Section 9(a), 29 U.S.C. 159(a) -....... 3 Section 9(b), 29 U.S.C. 159 (b)..3, 12, 18, 14 Miscellaneous: 120 Cong. Ree. (1974) : React oy See ne aie ee 15, 16, 17 BED icicctiseiccnectenienintnabininechiin’ 17 i I dA E sc \ ss eicietionile acteeacioecspeceiisivkaigi es 17 REESE oi een nse een ee 15 Coverage of Nonprofit Hospitals under Natione! Labor Relations Act, 1972: Hearings on H.R. 11857 Before the Sub- comm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong., me WE, (Rete? Set 17-18 Coverage of Nonprofit Hospitals under National Labor Relations Act, 1978: Hearings on S. 794 and S. 2292 Before the Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 93d Cong., Ist Sess. (19738) -.......02200.2... 18 H.R. Rep. No. 93-1051, 93d Cong., 2d Be PE ch ericirccteeneebladhastedsncicnks 4 N.L.R.B. Statistical Services (1979) ........ 11 S. 2292, 98d Cong., 1st Sess. (1973) -......... 13 S. Rep. No. 93-766, 93d Cong., 2d Sess. BUTI: nex cetccncchnbacanaatcisaacihdaetanaaabiniastess 4 Iu thy Suyweme Court of the United States OCTOBER TERM, 1979 No. NATIONAL LABOR RELATIONS BOARD, PETITIONER 7. MERCY HOSPITAL ASSOCIATION PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of cer- tiorari to review the judgment of the United States Court of Appeals for the Second Circuit in this case. OPINIONS BELOW The opinion of the court of appeals (App. A, infra, la-13a) is reported at 606 F.2d 22. The Board’s deci- sion and order (App. C, infra, 16a-28a) are reported at 238 N.L.R.B. No. 145. The Regional Director’s de- cision and direction of election in the related repre- sentation proceeding (App. D, infra, 29a-41a) is unreported. (1) 2 JURISDICTION The judgment of the court of appeals (App. B, infra, 14a-15a) was entered on September 4, 1979. On December 4, 1979, Mr. Justice Marshall extended the time for filing a petition until January 2, 1980. On January 10, 1980, Mr. Justice Marshall further extended the time for filing to and including Febru- ary 1, 1980. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the 1974 Health Care Amendments to the National Labor Relations Act permit the Board to apply traditional community of interest criteria in determining appropriate bargaining units in the health care industry, provided the Board’s determi- nations are consistent with the congressional admo- nition to avoid undue proliferation of bargaining units in health care institutions. STATUTE INVOLVED The relevant provisions of the National Labor Re- lations Act (29 U.S.C. 151, et seg.), are as follows: Section 8(a) It shall be an unfair labor prac- tice for an employer— (1) to interfere with, restrain, or coerce em- ployees in the exercise of the rights guaranteed in section 7; * * * * ¥* 8 (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). * * * * * Section 9(a) Representatives designated or se- lected for the purposes of collective bargaining by the majority of the employees in a unit ap- propriate for such purposes, shall be the exclu- Sive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of em- ployment, or other conditions of employment: * * * (b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaran- teed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or sub- division thereof: * * *, STATEMENT 1. In 1974, Congress extended the coverage of the National Labor Relations Act to previously exempt nonprofit hospitals (Labor-Management Relations Act of 1974, Pub. L. No. 93-360, 88 Stat. 395), concluding “that improvements in health care would result from the right to organize, and that unionism is necessary to overcome the poor working conditions retarding the delivery of quality health care” (Beth Israel v. NLRB, 437 U.S. 483, 499-500 (1978) ). At thesame time, Con- f gress addressed public concern “for the need to avoid disruption of patient care whenever possible” (S. Rep. No. 93-766, 93d Cong., 2d Sess. 6 (1974) ) by amend- ing Sections 8(b) and 8(e) of the Act to provide for advance notice of picketing and strikes, early notice of contract modification or termination, notice that an initial contract is to be negotiated, and mandatory mediation. Similarly, Congress sought to reduce the likelihood of work stoppages by urging the National Labor Re- lations Board to limit the number of bargaining units it certified in nonprofit hospitals. House and Senate reports accompanying the final bill included the fol- lowing statement (S. Rep. No. 93-766, supra, at 5; H.R. Rep. No. 93-1051, 98d Cong., 2d Sess. 6-7 (1974): Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Cen- ter, 208 N.L.R.B. No. 50, 85 LRRM 1093 (1974), and Woodland Park Hospital, 205 N.L.R.B. No. 144, 84 LRRM 1075 (1978), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 N.L.R.B. No. 170, 83 LRRM 1242 (19738). 1 By our reference to Extendicare, we do net neces- sarily approve all of the holdings of that decision. 2. On September 26, 1977, the International Union of Operating Engineers, Local 30-30A, AFL-CIO (the 5 “Union”) filed a petition for a representation elec- tion seeking certification as the exclusive bargaining agent for a unit of maintenance and engineering em- ployees employed by Mercy Hospital Association (the “Hospital’”’). The Hospital opposed the petition on the ground that the requested unit was inappropriate for collective bargaining and that the only appropri- ate unit was one including all service and mainte- nance employees (A. 1, 12-18, 114-115).1 A hearing was held before a Board hearing officer on October 20 and 27, 1977, at which the following evidence was adduced (A. 12, 110). The Hospital is a nonprofit 390-bed health care facility located in Rockville Centre, New York. It is organized into 32 departments or subdivisions, most of which are managed on a day-to-day basis by their respective department heads (A. 4, 138, 31, 111-112, 118-120). The Hospital’s Building, Plant and Ground Maintenance Department (the “maintenance depart- ment”) is comprised of 23 maintenance and engi- neering employees serving in 17 different job classi- fications (A. 18-14, 106)? The maintenance department operates under the supervision of a maintenance coordinator who deter- mines the qualifications required for all positions 1“A” refers to the appendix in the court below; copies have been lodged with the Clerk of this Court. 2 Included in these classifications are employees in the car- pentry, paint, plumbing and electrical shops, employees in the boiler plant, and employees engaged in general maintenance and grounds work (A. 13-14, 32-57, 106, 281-286). 6 within the department and is responsible for the se- lection and hiring, discipline, firing, evaluation, pro- motion, scheduling, assignment, and direction of all maintenance and engineering employees (A. 14, 120- 123, 134-135, 161, 232-233). With the exception of carpenters, electricians, and boiler room personnel whe report to the maintenance coordinator through shop chiefs, all maintenance department employees are under the sole and direct supervision of the coordinator (A. 14, 232-238, 332). To meet the Hospital’s standards for entry, main- tenance department employees must be highly skilled and experienced in the various crafts and trades they practice (A. 15).* They are charged with maintain- ing the Hospital’s grounds, buildings and equipment in safe and efficient operating condition. Their duties include inspecting, testing, servicing and operating sophisticated and complex equipment; performing con- struction, alteration and renovation work; and carry- ing out electrical work in compliance with applicable codes (A. 15-16, 32-57, 107-108, 175-178, 181, 185- 186, 190, 193-195, 197-199, 205-206, 213, 278, 289- 292, 313, 316-317). 3 For instance, the chief watch engineer and assistant chief watch engineer must have either a marine or stationary engi- neer’s license. In addition, both had substantial prior experi- ence in operating high-pressure boiler room equipment (A. 15, 49, 51, 60-61, 100-101, 204-205, 280, 287, 288-289, 319-320). In fact, every one of the maintenance department’s employees had significant experience in the craft or trade for which he or she was hired or in a related field before joining the de- partment (A. 15, 58-59, 62-77, 80-81, 84-95, 98-99, 102-103, 180-182, 198, 208-210, 214-218, 247-249). 7 Maintenance department employees frequently as- sist each other in the performance of their duties and there is substantial interchange of skills and func- tions among them (A. 17-18, 32-38, 35, 38, 40, 108, 186, 190, 192, 227-228, 240-248, 250, 261-262, 268- 269, 279, 288-291, 311-312, 314-316, 320-322) .* In con- trast, maintenance department employees lack signifi- cant functional and operational integration with other hospital personnel, including the Hospital’s service employees.° Although maintenance department em- ployees work at locations throughout the hospital complex, they are not assisted by other employees in the performan~2 of their duties and their work is carried out with a minimum of interruption of the work of other departments (A. 19, 107, 256-258, 322). Maintenance and other employees do not share com- mon supervision (A. 19, 322). Nor is there signifi- cant transfer between the maintenance department and other departments; all but one of the present In addition, maintenance department employees report to a common office located in the hospital basement and work out of shop areas located in close proximity along the base- ment corridor; have their own locker rooms, which are not utilized by other employees; wear identifying uniforms differ- ent from those of other employees; and have time cards grouped together (A. 17-18, 141, 144, 148-151, 162, 267). 5 The Hospital’s service employees include aides, orderlies, technicians, printers, and housekeeping, laundry, dietary, mail room and communications workers. They typically perform their duties in conjunction with technical, nursing and other employees (A. 126-130, 146-147). 8 maintenance department employees were hired di- rectly into the department, and no maintenance de- partment employee has ever been transferred out of the department (A. 15, 58-59, 166-167). Promotion within the maintenance department is encouraged, and training and skills acquired on the job generally lead to advancement (A. 15, 18, 27, 166, 180-182, 202, 204, 207, 214-215, 217-218, 228, 271-272, 287, 317). Consistent with their specialized skill and experience, maintenance department employees generally receive higher wages than the Hospital’s service employees. The Hospital’s pay scale for the maintenance depart- ment provides higher rates of pay at both the top and bottom levels, and a higher rate of progression within each level than does the scale applicable to service employees (A. 16, 22-25). Based on the foregoing, the Regional Director found that a unit comprised of the Hospital’s maintenance department employees would be appropriate for col- lective bargaining purposes, and directed that an election be conducted (App. D, infra, 29a-41a).° The The unit found appropriate by the Regional Director is as follows (App. D, infra, 38a-39a) : All full-time and regular part-time maintenance and engineering employees, including maintenance workers, maintenance mechanics, electricians, gardners [sic], groundsmen, carpenters, painter/plasters [sic]), plumb- ers, boiler men, watch engineers and chauffeurs employeed by the [Hospital] at its Rockville Centre, New York loca- tion, excluding all other employees, guards and super- visors as defined in the Act. 9 Hospital’s request for review of that finding was de- nied by the Board (A. 3; App. C, infra, 18a). After the Union won the ensuing representation election and was certified as the unit’s bargaining representative (A. 1, 6; App. C, infra, 21a), the Hos- pital refused to bargain. The Board found the Hos- pital to have thereby violated Sections 8(a)(5) and 8(a)(1) of the Act, and issued a bargaining order (7d. at 22a-26a). 3. The court of appeals denied enforcement of the order and remanded “for consideration of the pro- priety of the certified unit under a standard afford- ing appropriate deference to the mandate of Con- gress [to avoid undue proliferation of bargaining units]” (App. A, infra, 2a). In the court’s view, the Board had initially been solicitous of this non- proliferation admonition but in later cases had be- come less so, concluding that it could give “sufficient deference to the congressional admonition * * * by applying to proposed hospital bargaining units the same community of interest approach ordinarily utilized for unit determinations in an industrial con- text” (id. at 10a).7 Noting that this conclusion was based in part on the belief that Congress had added 7 The community of interest criteria traditionally used by the Board include mutuality of interest in wages and hours; commonality of supervision, skills and functions; frequency of contact with other employees; degree of interchange and functional integration with other employees; and area bar- gaining practices. See, e.g., American Cyanamid Co., 131 N.L.R.B. 909, 910 (1961). 10 the admonition primarily “to forestall the grouping of health care institution employees by virtually every professional interest or job classification as has oc- curred, for example, in the construction industry” (id. at 11a), the court stated (id. at 11a-12a): We disagree. Our reading of the legislative his- tory leads us to conclude that in the 1974 amend- ment Congress was expressing concern not only that health care institutions be spared the egregi- ous unit proliferation of the construction trades but that less extreme unit fragmentation aris- ing from application of usual industrial unit eriteria could also impede effective delivery of health care services. * * * Thus, we hold along with our sister circuits that when the Board makes a unit determination for health care in- stitution employees, traditional community of interest factors “must be put in balance against the public interest in preventing fragmentation in the health care field.” St. Vincent's Hospital v. N.L.R.B., [567 F.2d 588, 592 (3d Cir. 1977) ]. The Board in its decision must specify “the man- ner in which its unit determination * * * imple- ment[s] or reflect[s] that admonition * * *.” N.L.R.B. v. West Suburban Hospital, [570 F.2d 213, 216 (7th Cir. 1978) ]. The court concluded that “[s]uch a course was not followed in the” instant case (App. A, infra, 12a). Northeastern Hospital, 230 NLRB 1042 (1977); Sutter Com. munity Hospitals of Sacramento, Inc., 227 NLRB 181 ( 1976); Anaheim Memorial Hospital Association d/b/a Anaheim Memorial, 227 NLRB 161 (1976); Greater Bakersfield Memo- rial Hospital, 226 NLRB 971 (1976) ; St. Joseph Hospital, 224 NLRB 270 (1976); The Baptist Memorial Hospital, 224 NLRB 199 (1976); Riverside Methodist Hospital, 223 N LRB 1084 (1976) ; and The Jewish Hospital Association of Cincinnati d/b/a Jewish Hospital of Cincinnati, 223 NLRB 614 (1976) cases denying separate maintenance employee units. I find the two lines of decisions irreconcilable. So, too, have three courts of appeal. The Long Island College Hospital v. N.L.R.B.. 566 F.2d 833 (2d. Cir. 1977), denying enforcement to 228 NLRB 83 ( 1977) ; St. Vincent’s Hospital v. N.L.R.B., 567 F.2d 588 (3d Cir. 1977), denying enforcement to St. Vincent’s Hospital po NLRB. V. West Suburban Hospital, 570 F.2d 213 os a a denying enforcement to West Suburban Hos- 98a ateness of maintenance units generally, its estab- lishment does not conflict with the congressional mandate against proliferation of bargaining units in the health care industry. [Footnote omitted.] This standard, which is a more rigid one than is applied in other industries, can be met when the unit sought . . . is composed of licensed craftsmen engaged in traditional craft work, which is performed in a separate and dis- tinct location apart from other employees 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.” To grant separate representation to maintenance or boiler room employees where a less distinct com- munity of interests exists among the employess in the unit sought would be to accord no recognition to: the congressional admonition against unit prolifera- tion in this industry.” But that is what the members 19 223 NLRB at 639-640. Finding this strict test satisfied, I joined my colleagues in St. Vincent’s in giving a separate unit to five boiler room operators. Significantly, however, the majority opinion concluded that separate representation for these employees was justified under “traditional standards,” and failed even to pay lip service to the congressional directive against fragmentation of units in the health care industry. In only one case since St. Vincent’s, Mercy Center for Health Care Services, supra, have I found a group of maintenance employees or boiler room operators to share such an excep- tionally high degree of community of interest among them- selves as to justify separate representation. *° Although I concurred separately in Jewish Hospital of Cincinnati, supra, I agree with the following observation of 99a of the majority evidently have in mind. What is truly remarkable, though, is the “rationale” used to support this conclusion. My colleagues start with the reasonable premise, with which I do not disagree, that Congress did not intend to preclude the Board from finding maintenance units appropriate. From that, however, they jump to the entirely unwarranted conclusion that the appropriateness of such units should be judged only in terms of traditional com- munity-of-interest criteria, notwithstanding the spec- ial concern displayed by Congress about unit prolif- eration in the health care field. In so finding, the majority has either rewritten, or just ignored, the relevant legislative history of the health care amend- ments, and has overruled, sub silentio, each of the Board cases cited in my footnote 18, supra, in which we found maintenance units not to be appropriate in light of the congressional nonproliferation admoni- tion. The majority points out that the Board denied a separate unit to switchboard operators, apart from the majority in that case in reference to separate representa- tion for maintenance (or engineering) department employees: [H]ospitals are composed of a number of departments each of which, in a general sense, could be said to be made up of skilled employees performing duties which are functionally distinct. The real question is whether the distinctions between engineering department employ- ees and the employees in other departments show such separate interests as to warrant granting engineering de- partment employees a separate unit while not permitting skilled employees in other departments the same privilege. [223 NLRB at 617.] 100a other business office clerical employees in a hospital, in Duke University; * that it refused to give a sepa- rate unit composed of all laboratory and x-ray de- partment in American Hospital Management Corp. d/b/a Mad River Community Hospital; ” and that it declined to accord separate representation to labora- tory technical employees in Pontiac Osteopathic Hos- pital.” However, as I stated concerning the Board’s denial of separate professional representation to psy- chiatrists and pharmacists, footnote 99, supra, such cases do not establish that the Board has inhibited unit proliferation in this field as Congress intended, because the units sought were inappropriate under traditional criteria. V. In three major cases, two arising within the juris- diction of the Third Circuit,“ and one within that of the Seventh Circuit,” courts of appeal have de- clared in no uncertain terms that the Board must take heed of the congressional admonition against unit proliferation when deciding upon appropriate units in health care institutions. 21217 NLRB 799 (1975). 22 219 NLRB 25 (1975). 23 227 NLRB 1706 (1977). 24 Memorial Hospital of Roxborough v. N.L.R.B., 545 F.2d 351, 360, 361 (1976), denying enforcement to 217 NLRB 520 (1975) (myself dissenting) ; St. Vincent’s Hospital v. N.L.R.B., supra. 2 N.L.R.B. Vv. West Suburban Hospital, supra. ana er ds ba 10la In Roxborough, the court denied enforcement to a Board Order requiring the employer to bargain with the union as the representative of the employees in its maintenance department. In the course of its opinion, the court noted that, “[ T]he legislative his- tory of these [hospital] amendments does indicate the special cuncern of Congress with respect to ap- propriate units in this industry,” and that Congress “interjected a special consideration into the Board’s determination of appropriate units in the health care industry.” The court held that the Board’s Order, based as it was upon an extension of comity to a state labor board’s unit determination, was not entitled to enforcement, because the Board had not exercised its own discretion under Section 9(b) of the Act to find units appropriate nor had it “complied with the Con- gressional admonition that it consider proliferation of units in the health care industry.” The same circuit court also denied enforcement to the Board’s bargaining order in St. Vincent’s, in which case, as noted in section IV, supra, the Board found appropriate a unit confined to five boiler room operators.”* Contrary to my colleagues, the court, in 26 Although, as explained above in my fn. 19 and accom- panying text, I did so because, in my estimation, the facts disclosed an exceptionally strong community of interest among the employees in the unit sought—sufficient to justify allow- ing them separate representation without running afoul of the congressional nonproliferation directive. But, as also noted in fn. 19, the majority purported to grant the unit solely upon traditional community-of-interest principles, without even a fleeting reference to the intent of Congress that separate bar- gaining units be given sparingly in this industry. Thus, the 102a so doing, did not misinterpret the legislative history of the 1974 amendments to the Act, and it certainly did not find that the Board was “precluded . . . from relying upon its traditional community-of-interest criteria in making unit determinations in the health care industry.” Rather, the court simply informed the Board that it may not depend solely upon its cus- tomary community-of-interest test in making such determinations, but must give weight as well to the intent of Congress that units in health care facilities not be allowed to multiply: [T]he factors of amount of contact between workers, separate immediate supervision, and the special skills of certain crafts must be put in balance against the public interest in preventing fragmentation in the health care field. A me- chanical reliance on traditional patterns based on licensing, supervision, skills and employee joint activity simply does not comply with congres- sional intent to treat this unique field in a special manner.” In this connection, the court rightly observed: The legislative history of the health care amendments, however, makes it quite clear that Congress directed the Board to apply a standard in this field that was not traditional. Prolifera- difference between miyself and the court in St. Vincent’s amounted to no more than a factual disagreement. I fully concur with the court’s exposition of the law regarding health care unit determinations. 27 567 F.2d at 592. PLN gree et es 103a tion of units in industrial settings has not been the subject of congressional attention but frag- mentation in the health care field has aroused legislative apprehension. The Board therefore Should recognize that the contours of a bargain- ing unit in other industries do not follow the blueprint Congress desired in a hospital.”® The Seventh Circuit made the same point in West Suburban, where it set aside a Board Order based on a finding that a unit limited to maintenance em- ployees in the hospital was appropriate. The Board majority opinion in West Suburban, as the court cor- rectly noted, did no more than make “mere lip-service mention” of the congressional admonition against unit proliferation in health care institutions, and proceeded to judge the facts strictly in terms of its usual community-of-interest test. Thus, “without any indication from the Board as to the manner in which its unit determination in [the] case implemented or reflected that admonition,” the court held that the Board’s decision violated the congressional nonprolif- eration mandate. VI. As indicated, I dissented in the original proceeding involving this Employer, and declined to extend comity to the PLRB certification of the Charging Party as collective-bargaining representative of cer- tain of the Employer’s maintenance employees. As will be seen, the facts in the instant case fell far 28 Tbid. 104a short of establishing that the employees in the unit sought process such an exceptionally high degree of community of interest among themselves, as to per- mit them separate representation under the criteria set forth in my concurring opinion in St. Vincent’s Hospital, supra. Not only that, the requested unit is inappropriate in light of the numerous Board cases cited in my footnote 18, supra, where we have denied separate maintenance units in similar circumstances. In the first place, the maintenance employees whom the Charging Party would represent run the gamut from skilled to unskilled. The proposed unit consists of 3 carpenters; 1 leadman electrician and 6 elec- tricans in 2 skill classifications; 1 leadman elevator employee and 2 elevator mechanics; 1 leadman painter and 6 painters in 2 skill classifications; 1 leadman plumber and 1 plumber in each of 2 skilled classi- fications; 2 plasterers; 1 leadman mechanic and 13 mechanics in 2 skill classifications; 1 leadman refrig- eration mechanic and 2 refrigeration mechanics; 4 operating engineers; 4 firemen; 4 laborers; 1 com- pactor operator; 1 machinist; 2 wall washers; 1 sheet metal worker; and 1 storeroom attendant. This unit would not even encompass all maintenance depart- ment employees: it excludes the chauffeur, two cus- todians, two draftsmen, one secretary, and three clerks in two classifications. Of the 61 employees whom the Charging Party is willing to represent, only the plumber is registered and only the operating engineers are licensed. The firemen are trying to be- come licensed, but are not yet. While some employees 105a may possess craft-like skills, there is no indication whether any have even achieved journeymen level status) others have barely any skill. Thus, according to the PLRB decision, mechanics, for example, “are graded according to the degree of their skill, rang- ing from those who operate and repair complex ma- chinery, to ‘handyman’ who may repair a light Switch.” Further, as the PLRB found, unskilled laborers often work with higher skilled employees. Most maintenance employees work throughout the various areas of the hospital, often work in conjunc- tion with housekeeping employees, and come into reg- ular contact with other nonprofessional employees. Although maintenance employees, in general, receive somewhat higher pay than service employees, both groups of employees receive the same fringe bene- fits, use the same entrance and timeclock, are housed in the same part of the hospital, have the same re- laxation facilities and opportunities, and are entitled to receive the same continuing education and tuition assistance benefits. With these facts in mind, I see no justification for permitting a segment of the Employer’s maintenance employees separate representation.”* *° See, in particular, The Jewish Hospital Association of Cincinnati d/b/a Jewish H ospital of Cincinnati, supra, where the Board found inappropriate a unit composed of mainte- nance employees, notwithstanding the fact that 90 percent of those in the unit sought were journeyman level craftsmen. 106a VII. In closing, I make four observations by way of summary. 1. If Congress had intended, as my colleagues as- sert, that the Board apply only its usual community- of-interest criteria in deciding upon appropriate units in the health care industry, there would have been no need for Congress to have said anything in the legis- lative history about unit determinations in t*is field. Yet, Congress did display special concern in the com- mittee reports that units not be allowed to proliferate in health care institutions, because it believed that strikes and work stoppages disruptive of patient care would be more frequent, the greater the number of bargaining units. 2. The members of the majority, however, con- tend that Congress was only afraid that the Board would establish units for each job classification or craft in a hospital, even though it had not done so in the industrial sphere. But it is not logical that Con- gress would be apprehensive that the Board would suddenly start finding to be appropriate units in health care institutions which it had generally not granted in industrial facilities. 3. The only reasonable reading of the legislative history, as the courts have recognized, is that Con- gress intended that the Board consider the ‘factor of public interest” in unit limitation, along with its traditional criteria, in making unit determinatons in the health care industry. Translating this com- mand into a workable test, separate units should be 107a found appropriate in this field enly where the em- ployees in the proposed unit enjoy an exceptionally high degree of community of interest among them- selves, distinct and apart from other employees. 4. As the review of the cases in this opinion re- veals, application of the foregoing standard results in the creation of no more than two professional health care units, (1) registered nurses, and (2) all other professionals; and two basic nonprofessional units, (1) business office clerical employees, and (2) all other nonprofessionals, except, in very rare cor- cumstances, where a boiler room operator or craft maintenance unit may be appropriate. In contrast, use only of traditional community-of-interest prin- ciples results in finding appropriate three profes- sional units, (1) registered nurses, (2) employed physicians, and (3) all other professionals; and five nonprofessional units, (1) boiler room operators, (2) maintenance employees, (3) service employees (where a maintenance unit has been approved), (4) techni- cal employees, and (5) business office clerical em- ployees. As time goes on, I suspect the Board will find even more units, particularly on the professional level, appropriate under “traditional” principles. As has been seen, rather than specifying a limited number and type of units as appropriate by statute in health care institutions, Congress entrusted to the Board the responsibility of giving effect to its wish that the number of units in such institutions be re- stricted. That is why the most disturbing aspect of today’s decision is that the Board has disregarded 108a Congress’ desires, indeed shown itself to be completely indifferent to them, and that is why I have felt con- strained to dissent at length. Dated, Washington, D.C. December 19, 1978 John A. Penello, Member NATIONAL LABOR RELATIONS BOARD 109a APPENDIX COMMONWEALTH OF PENNSYLVANIA PENNSYLVANIA LABOR RELATIONS BOARD Case No. PERA-R-1038-W IN THE MATTER OF THE EMPLOYEES OF ALLEGHENY GENERAL HOSPITAL ORDER AND NOTICE OF ELECTION A Petition for Representation by Public Employes, Group of Public Employes or Employe Organization was filed with the Pennsylvania Labor Relations Board, hereinafter called the “Board”, on April 6, 1971, by International Union of Operating Engi- neers, Local 95-95A, AFL-CIO, hereinafter called the “Union”, alleging, inter alia, that 30% or more of the employes of Allegheny General Hospital, herein- after called “Employer”, in an appropriate unit, de- sire to be exclusively represented for the purpose of collective bargaining, and requesting an Order for an election. Pursuant to due notice to all interested parties, a hearing was held on October 15, 1971, in Pittsburgh, - Pennsylvania, before Martin A. Hamburger, Esquire, a duly designated Trial Examiner of the Board, which hearing was continued and completed on Octo- ber 20, 1971. All parties in interest were present and were afforded an opportunity to examine and cross-examine witnesses and to present testimony and introduce evidence. 110a The Board, on the basis of testimony and evidence presented at the hearings and from all other matters and documents of record, makes the following: FINDINGS OF FACT 1. That the parties stipulated and agreed that Allegheny General Hospital is a health institution, with its principal office at 320 East North Avenue, Pittsburgh, Pennsylvania, and the parties stipulated that it is a “public employer within the meaning of Section 301(1) of the Public Employe Relations Act”. (N.T. 7) 2. That the parties stipulated and agreed that In- ternational Union of Operating Engineers, Local 95- 95A, AFL-CIO, is an employe oragnization which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, employer- employe disputes, wages, rates of pay, hours of em- ployment and other conditions of work, with its prin- cipal office at the Lawyers Building, Pittsburgh, Pennsylvania, and the parties stipulated that it is an “employe organization within the meaning of Section 301(3) of the Public Employe Relations Act”. (N.T. 7) 8. That the unit proposed by the Union, as stipu- lated during the hearing, and somewhat amending the original Petition, consists of sixty-one (61) of the employes in the Maintenance Department of the em- ployer in the following classifications and strengths: Carpenter 3, Leadman Electrician 1, Electrician A 3, lila Electrician B 3, Leadman Elevators 1, Elevator Me- chanic 2, Leadman Painter 1, Painter A 3, Painter B 3, Leadman Plumber 1, Plumber A 1, Plumber B 1, Plasterer (tile setter) 2, Leadman Mechanic 1, Me- chanic A 1, Mechanic C 12, Leadman Refrigeration 1, Refrigeration Mechanic 2, Operating Engineers 4, Fireman 4, Laborers 4, Compactor Operator 1, Ma- chinist 1, Wall Washers 2, Sheetmetal Worker 1, and Storeroom Attendant 1. (N.T. 8-12) 4. That the unit proposed by the employer consists of one hundred and sixty-two (162) employes; sev- enty (70) employes in employer’s Maintenance De- partment and ninety-two (92) employes in employer’s Housekeeping Department; it includes, in addition to the classifications proposed by the Union, the follow- ing classifications and strengths: Maintenance De- partment—Chauffeur 1, Custodian B 2, Draftsman 2, Secretary A 1, Clerk A 1, Clerk B 2; Housekeeping Department—Custodian A 10, Custodian B 79, Seam- stress 1 (presently vacant), Clerk A 1, and Clerk B 1. (N.T. 8-12) 5. That the employer has approximately 1,250 full- time employes and a total work force of between 1,950 and 2,000; the Maintenance and Housekeeping Departments are both within the employer’s “Sup- porting Services” area or division as defined by em- ployer’s administrative structure; additionally the Laundry, Dietary, Security and Swithboard Depart- ments are within the “Supporting Services” area; there is a Director of the Maintenance Department, two (2) supervisors and a man responsible for plan- 112a ning, all of whom direct and supervise the Mainte- nance Department employes; the administrative struc- ture in the Housekeeping Department consists of Executive Housekeeper, Assistant Housekeeper, and five (5) supervisors, who give work assignments to Housekeeping personnel. (N.T. 16, 17, 65, 66, 73 and 74). 6. That persons employed as Carpenter, Electri- cian, Painter, Plumber, Plasterer, Sheetmetal Work- er, Elevator Mechanic, Machinist, Operating Engi- neer, Fireman and Mechanic perform functions normally associated with their craft or skill; Mechan- ics are graded according to the degree of their skill, ranging from those who operate and repair complex machinery, to “handymen” who may repair a light switch; Laborers work with craftsmen as required, perform outside maintenance work, and are not merely helpers; the Compactor Operator operates equipment which compacts loose trash; Wall Washers use wall washing equipment to wash walls, at times in preparation for painting, do high dusting, change bulbs and less complex light fixtures; the Storeroom Attendant maintains the storeroom and inventories, keeps and distributes tools and parts to Maintenance employes. (N.T. 20-27, 538, 54, 59, 60 and 61). 7. That Draftsmen produce working drawings which form the basis for maintenance work and rec- ord the location of internal systems; have specialized post-high school training; work predominantly in the Maintenance Department Office between the hours of 8:30 a.m. and 5:00 p.m., earn $3.32 an hour, wear 113a white-collar dress, and receive their instructions largely from the Director of the Maintenance Depart- ment. (N.T. 28, 29, 63-65 and 67). 8. That the Chauffeur operates the employer’s sta- tion wagon, transports hospital personnel and persons having business with the hospital and delivers small items; is responsible for servicing the vehicle, but not its maintenance or repairs; receives work instruc- tions from any hospital personnel having sufficient authority; has an operators license, but is not a mechanic; and earns $3.01 an hour. (N.T. 26, 36, 55-58) 9. That the Secretary and the Clerks A and B in the Maintenance Department and the Clerks in the Housekeeping Department perform secretarial and clerical tasks, keep and check records, receive and is- sue work, purchase, and other orders and requisitions pertaining to the operation of their respective depart- ments; the Secretary maintains the hospital key con- trol; they wear street dress and not uniforms, work between 8:30 a.m. and 5:00 p.m. in their Depart- ment’s Offices; the Secretary earns $3.08 an hour, the Clerks from $2.35 to $2.85 an hour. (N.T. 29-31, 35-37, 66-71, 73 and 74). 10. That Custodian B employes in the Mainte- nance Department clean Maintenance Department facilities and are, therefore, attached to the Mainte- nance Department; have the same job description, pre-hire experience and educational requirements, and receive the same rate of pay of $2.64 an hour, as the Custodian B employes in the Housekeeping Depart- ll4a ment; Custodian A and B in the Housekeeping De- partment do normal cleaning, sweep and dust mop floors, clean furniture, fixtures and interior glass, change beds and linen and handle cubical curtains; Custodians A additionally operate power equipment related to floor care, such as buffing. Custodians A earn $2.81 an hour. (N.T. 28, 33, 36, 44, 45 and 72). 11. That the Maintenance employes’ hourly rate of pay ranges from $4.47, earned by Leadman Ele- vator Mechanic, to $2.64 earned by the Wall Washer and Compactor Operator; the next lowest rate of $3.01 is earned by Laborer and Painter B; all but four (4) employes employed as Wall Washer and Compactor Operator earn in excess of the top hourly rate of $2.81 earned by Housekeeping Department Custodians. (N.T. 35-37) 12. That the Maintenance employes’ working hours, lunch time, and breaks differ somewhat from those of the Housekeeping Department Custodians; the Maintenance and Housekeeping Departments each determine the respective lunch time and break time of employes within their Departments; Maintenance em- ployes’ first shift is 7:30 p.m. to 4:00 p.m., lunch time is generally 12:00 to 12:30, the morning break between 10:00 and 10:15 a.m., the afternoon break between 2:30 and 2:45 p.m.; some of these employes work the second and third (night) shifts; Housekeep- ing Department Custodians’ first shift is 7:00 a.m. to 4:10 p.m.; lunch time is 10:45 to 11:15 a.m. for some and staggered for others; the morning break from 9:00 a.m. to 9:15 for some and morning and jos BORPI Fy Hy, ETE ener tee eat ae emer anN nase etme pena ae 115a afternoon breaks staggered for others ; and about 10 to 12 of the Housekeeping Custodians commence work later to provide coverage into the early evening, but none work during the night shift. (N.T. 47-48, 87-89, 172-173). 13. That the Maintenance employes wear green uniforms, female Housekeeping Custodians wear blue uniforms, male Housekeeping Custodians wear gray pants and white shirts; Maintenance employes have separate locker facilities, Housekeeping Custodians use the main locker facilities; Mechanics and certain other Maintenance employes provide their own hand tools, Housekeeping Custodian employes do not pro- vide their own tools; the employer provides all other tools and equipment to both groups of employes; Maintenance employes are more likely to utilize the shower facilities and there are separate maintenance shops; both Maintenance and Housekeeping employes work on the employer’s total facility, but Housekeep- ing employes are frequently assigned regular specific areas and Maintenance employes are assigned by function to be performed; Compactor Operator, La- borer, and Custodian have no pre-hire educational and experience requirements; craftsmen are expected to be able to perform their craft when hired; at least one (1) Plumber is registered, the Engineer is li- censed and the Firemen are attempting to become licensed; Housekeeping and Maintenance report in at different places for work; and grievance procedure follows supervisory lines and is different at the first and second levels which are within the Maintenance 1l6a and Housekeeping Departments, respectively, but the same at the third, fourth and fifth levels. (N.T. 44, 45, 47, 54, 60-68, 84-86, 89-91, 108-109) 14. That the employer provides the same continu- ing education and tuition assistance for both groups; their vendor exposure is similar and often identical; they have the same relaxation provisions and facili- ties and employe fringe benefits; they use the same entrance and timeclock also used by other employes; both are housed in the same part of the hospital. (N.T. 45-49 and 80) 15. That the Maintenance employes and House- keeping Custodians perform some tasks cooperatively and simultaneously and some others in tandem, for example in isolation procedures and the “turn- around” of a patient’s room in preparation for new patient occupancy; Maintenance employes may flush traps and drains or change air condition filters while Custodians clean the room, or in the operating room procedure Housekeeping employes will clean and Maintenance employes will subsequently measure bac- teriological count with a megometer; close scheduling and coordination is required; both groups contribute in accordance with their respective skills and func- tions to achieving a clean and safe environment; Housekeeping employes are especially directed to no- tice and report mechanical defects in equipment; in- creasing so: histication of equipment and setting for delivery of patient care requires continuing and in- creasingly coordinated maintenance and cleaning. (N.T. 37-43, 100-101) TOMO I BY om Nae Kita ERVICES OF bl et 117a 16. That females constitute 75% of Housekeeping Department employes and 4% to 5% of Maintenance Department employes; minority employes constitute 25% in the Housekeeping Department and 3% in the Maintenance Department. (N.T. 122) 17. That from 1936 to the present, eight (8) em- ployes from the Housekeeping Department moved to positions in the Maintenance Department; two (2) of these separated from the employer in 1965 and 1969; three (3) of the remaining six (6) are in the lowest Maintenance pay category, equivalent to the lowest Housekeeping Department pay category; the remaining three (3) are Engineer, Elevator Me- chanic and Painter A and entered the Maintenance Department in 1939, 1964 and 1956, respectively, and required necessary skills and training outside of their employment for the Hospital. (Stipulation of Fact attached to Employer’s B~ief and N.T. 84, 121, 122, 125-131) 18. That craft leadmen direct the work of their craft, 85% of their time is devoted to working the remainder to leading; they are not considered super- visory by the employer and do not hire, fire or disci- pline other employes. (N.T. 20, 32-33) DISCUSSION The Union here is seeking to represent a unit consisting of 61 of 70 employes in the employer’s Maintenance Department. The employer contends this unit to be inappropriate and urges the Board 118a to determine as an appropriate unit a larger one con- sisting of all 162 employes in its Maintenance and Housekeeping Department. Is the unit proposed by Petitioner an appropriate unit? Section 604 of the Public Employee Relations Act provides: « .. In determining the appropriateness of the unit, the Board shall: (1) take into consideration but shall not be limited to the following: (i) public employes must have an identifiable community of interest, and (ii) the effects of over-fragmentization.” Petitioner’s proposed unit embraces all employes in the Maintenance Department, excluding only em- ploys in the classifications Chauffeur, Custodian B, Draftsman, Secretary and Clerk. Those within the unit clearly have an identifiable community of inter- est. They are within the same department, perform maintenance work, wear the same uniforms, have their own locker and shower facilities and work the same hours and shifts. They range in skills from craftsmen and licensed engineers, who perform work normally associated with their craft or trade and who are expected to possess those skills when hired, to those less skilled, such as Mechanic C, who is likened to a handyman and may repair a light switch, Laborer who is not merely a helper and who does outside main- tenance work and works with craftsmen as required, Compactor Operator who operates a trash compres- sor and Wall Washer who does high work and dust- ing. Their hourly rate of pay ranges from $4.47 to $2.64. The Board has in the past recognized sepa- ¥ ¥ i is : & 3 4 | : f 119a rate maintenance units as appropriate, Hahnemann, supra, and Magee-Women’s Hospital, No. PERA-R- 175-W. Is the line of demarcation of Petitioner’s unit which embraces the less-skilled Maintenance Department employes and excludes the remaining Maintenance employes and Housekeeping Department employes, in- appropriate as the employer contends? And consider- ing all factors, including an identifiable community of interest and the effects of over-fragmentization, is a unit consisting of all Maintenance and Housekeep- ing employes the appropriate unit, and Petitioner’s unit therefore inappropriate? The Secretary and Clerks in Maintenance and the Clerks in Housekeeping, while their work is unques- tionably necessary to the proper functioning of their respective Departments, are essentially white-collar clerical workers. They work in the Department of- fices, in normal street dress, and their working hours are different from the uniformed personnel in their Departments. They would fall logically into a unit for office and clerical personnel. The Draftsmen, too, are white-collar, work predominantly in the office and have different working hours than uniform em- ployes. They utilize their skills in desk work, differ- ent in nature from physical maintenance work. These factors place them into a technical category outside Maintenance, notwithstanding the functional relation- ship of their work to the Maintenance Department. The Chauffeur’s work appears to have no special con- nection to the remaining work of the Maintenance 120a Department. The Chauffeur is unskilled except for his ability to operate the employer’s vehicle and his supervision is to a large extent from outside the Department. He does not, therefore, fall logically within a unit for Maintenance employes. The Cus- todian B in the Maintenance Department is within that Department because his custodial work is di- rected toward Maintenance Department facilities. His compensation and job description are identical with the Housekeeping Department Custodian B clas- sification. As such, his interests coincide with the Custodians in the Housekeeping Department. COMPARISON OF REMAINING MAINTENANCE EMPLOYES AND HOUSEKEEPING DEPARTMENT CUSTODIANS While we are not prepared to accept the skill group- ings in Employer’s Brief as sufficiently supported by testimony, if degree of skill were the only factor to be considered it would be difficult to differentiate, for instance, between Custodian A, who operates floor polishing equipment, and Mechanic C, who repairs light switches. Even so, it appears that most, if not all, of the employes in Petitioner’s unit possess and use at least some skill, whereas the large bulk of Housekeeping employes (79 of 91) are in the Cus- todian B classification who do unskilled work. Viewed in terms of other relevant factors, however, a sound basis for differentiation emerges. Maintenance work- ers operate plant, systems, and equipment and keep them in good working order and repair them when necessary. Custodians fundamentally do cleaning 12la work. This distinction is observed in the Hahne- mann decision’ in which maids are placed in the Service employes’ unit and not in the Maintenance unit. They wear different uniforms, work somewhat different hours and shifts and observe different lunch times and breaks, have different locker facilities, some of the Maintenance employes provide their own tools while Custodians do not, they fall under different supervision, Maintenance work sites are determined by function, while Custodians often have regularly assigned work sites, their grievance procedures differ at the first and second levels within their respective Departments, although it is the same at the third, fourth and fifth levels. Their compensation differs appreciably, all but four of the Maintenance employes receive considerably higher hourly rates of pay than the Custodians. Finally, the employer has himself established and placed these employes in separate departments. This is especially to be noted as re- gards Wall Washers, in whose case the other criteria are less compelling. There are similarities as well. Both groups re- ceive the same fringe benefits, continuing education and tuition assistance; their vendor exposure is simi- lar and often identical; they have the same relaxation provisions and facilities, use the same entrance and timeclock also used by other employes and are housed in the same part of the hospital. 1In the Matter of The Employes of Hahnemann Medical College and Hospital of Philadelphia, No. PERA-R-28-E (1971). 122a The employer cites additional factors in support of his contention that Maintenance and Housekeep- ing are united in their community of interest and the effects of fragmentation. Broadly categorized they are (1) functional interaction, and (2) equal employ- ment opportunity. The first embraces preventive maintenance and the environmental aspect. It is as- serted that Housekeeping employes are especially di- rected to be alert to and report maintenance malfunc- tion. Further, both Maintenance and Housekeeping share in the common objective of a so-called “control environment”—which appears to mean essentially one that is clean and safe in terms of properly function- ing plant, machinery and equipment, appropriate to the delivery of medical care and in conformity with medical standards. Then, too, many tasks are per- formed jointly, or in tandem, for example, the “turn- around” of a room in preparation of new patient oc- cupancy requiring flushing of traps and drains, changing filters in air conditioners and washing of walls by Maintenance and general cleaning by House- keeping. This entails scheduling and coordination of the time the work is actually performed. It also means vendor exposure, often common to both Main- tenance and Housekeeping to familiarize employes with equipment for maintenance, operating and clean- ing purposes. Increasing sophistication in the setting of patient care and equipment used increases the need for Coordination. Separate bargaining units would reduce effectiveness it is claimed. 123a We find these factors to be less than persuasive. The chief differentiation between cleaning and main- tenance work remains. The performance of different tasks, requiring different and varying degrees of skill, even when done simultaneously, or as part of a com- mon objective, does not create a community of in- terest. Noticing and reporting defects requires no special skill, may be done as well by other hospital personnel or even patients and visitors, and does not raise Housekeeping to the Maintenance level. Nor is it clearly demonstrated that increasing sophistica- tion in equipment requires cleaning skills of a higher order. No reasons are given to explain why loss of effectiveness would result. The Maintenance Department is predominantly male and the Houskeeping Department is 75% fe- male. The employer contends that learning oppor- tunities arise and motivation to aspire to higher grade Maintenance positions is stimulated as a result of the close working association between Housekeeping and Maintenance employees; that there has existed actual job progression from Housekeeping to Main- tenance and there is further potential for such progression which is not equally present with respect to Laundry, Dietary and other Departments within the Supporting Services division; Housekeeping is entry level for female and minority employes and upgrading possibilities are an essential element of Equal Opportunity and required to achieve a fair representation of these groups in higher skill clas- Sifications; and separate units would discourage mi- 124a nority and female motivation to seek higher grade jobs in Maintenance, and separate seniority in Main- tenance would nearly quash it altogether. The em- ployer further urges the Board to make Equal Op- portunity a dimension in defining community of in- terest and in determining the appropriate unit. The history of transfers from Housekeeping to Maintenance since 1936 does not indicate an existing pattern of movement toward higher grade positions in Maintenance. Nevertheless, a potential for such progression appears to exist and the expert testi- mony to the effect that a separate unit may well dis- courage minority and female aspirations and sepa- rate seniority is likely to destroy them, is persuasive and requires our consideration. It is not suggested that the collective bargaining process as such, but certain practices and patterns that have developed within its framework, are inimical to those aspira- tions and actual job progression. It is in the interest of one group of employes to refrain from action which abridges the rights and opportunities of another group of employes and which interferes with the promotion of “orderly and con- structive relationships” between the employer and his employes. The Board must likewise consider this dimension in assessing community of interest and in determining the appropriate unit. While not ex- pressly enumerated in the Act, it is inherent in its stated policy, which is to be implemented consistent with other applicable law. 125a Clearly, the strongest negative impact is seen to accrue from a separate seniority provision. So, too the cases and material cited by the employer ait di- rected towards seniority provisions and other vehicles of discrimination which, like union control of em- ployment eligibility are not present here. The Board cannot consider these practices simply because they may arise in the future. Nothing prevents the em- ployer from resisting or those aggrieved from com- batting their future occurrence by using the remedial procedures available to them. There remains the less severe and less certain discouragement to aspiration occasioned by the creation of the proposed brick and mortar in the wall Separating victims of discrimina- tion and only reluctantly accept this possible conse- quence. At the same time, this element is only one in an already existing context of administrative and other separation rooted in historic attitudes and pat- terns. It alone is not insurmountable, particularly if this aggrieved assert their rights and the employer consistent wtih his stated concern, aids in this seocten, This element must also be weighed together with all the other factors hereinabove discussed, which taken together, justify finding the proposed unit appro- priate, 126a CONCLUSIONS The Board, therefore, after due consideration of the foregoing and the record as a whole, concludes and finds: 1. That the Allegheny General Hospital is a “pub- lic employer” within the meaning of Section 301(1) of the Public Employe Relations Act. 2. That International Union of Operating Engi- neers, Local 95-95A, AFL-CIO is an “employe organ- ization” within the meaning of Section 301(3) of the Public Employe Relations Act. 38. That the Pennsylvania Labor Relations Board has jurisdiction over the parties hereto. 4. That craft leadmen are not supervisors or first level supervisors under Section 301(6) and (19) of the Public Employe Relations Act. 5. That the unit deemed appropriate for the pur- pose of collective bargaining between the employer and its employes is a subdivision of the employer unit (described as the Maintenance unit), comprised of the following classifications: Carpenter, Leadman Electrician, Electrician A, Electrician B, Leadman Elevators, Elevator Mechanic, Leadman Painter, Painter A, Painter B, Leadman Plumber, Plumber A, Plumber B, Plasterer (tile setter), Leadman Me- chanic, Mechanic A, Mechanic C, Leadman Refrigera- tion, Refrigeration Mechanic, Operating Engineers, Fireman, Laborers, Compactor Operator, Machinist, Wall Washer, Sheetmetal Worker, and Storeroom Attendant and excluding management level employes, 127a supervisors, first level] supervisors, confidential em- ployes and guards as defined in the Act. Preis, THEREFORE NOTICE is hereby given at an ELECTION, by secret ballot, will be con- ducted on THURSDAY, JUNE 15, 1972 between the hours of 1:00 o’clock P.M., to 4:00 o’clock P.M., in Room B-21, Nurses Quarters, Allegheny General Hospital, 320 North Avenue, Pittsburgh Pennsylvania, in a subdivision of the employer cate (described as the Maintenance unit), comprised of the following classifications: Carpenter, Leadmen Electrician, Electrician A, Electrician B, Leadman Elevators, Elevator Mechanic, Leadman Painter Painter A, Painter B, Leadman Plumber, Plumber 4 Plumber B, Plasterer (tile setter), Leadman Me- chanic, Mechanic A, Mechanic C, Leadman Refrigera- tion, Regrigeration Mechanic, Operating Engineers Fireman, Laborers, Compactor Operator, Machinist, Wall Washer, Sheetmetal Worker and Storeroom At. tendant, and excluding management level employes Supervisors, first level supervisors, confidential an ployes and guards as defined in the Act. An eligibility list of those entitled to vote is at- tached hereto together with a sample form of the ballot to be issued at the time of Election. Pursuant to Rule 13.3 parties in interest should each nominate one (1) Watcher who shall be given authority to act as same immediately prior to the Opening of the Election. 128a THIS ORDER AND NOTICE OF ELECTION and the attached material shall be posted by the Employer immediately upon receipt, subject to the provisions of ARTICLE VI of the Board’s Rules and Regulations | approved October 9, 1970, as amended, and, subse- quent to posting, the Public Employer shall furnish to the Pennsylvania Labor Relations Board an Affi- davit of Posting in compliance with this Order. SIGNED, SEALED AND DATED at Harrisburg, Pennsylvania this twenty-third of May, 1972. OF SO NRE SY prnRC ne mae ene pe de a PENNSYLVANIA LABOR RELATIONS BOARD /s/ Raymond L. Scheib RAYMOND L. SCHEIB, Chairman /s/ Joseph J. Licastro JOSEPH J. LicasTRO, Member /s/ James H. Jones JAMES H. JONES, Member WX U. S$. GOVERNMENT PRINTING OFFICE; 1980 309116 201 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1641%3A1. Public record. Not legal advice.