University of Chicago v. N.L.R.B., 74-1392
| Decision Date | 24 April 1975 |
| Docket Number | No. 74-1392,74-1392 |
| Citation | 514 F.2d 942,89 LRRM 2113 |
| Parties | 89 L.R.R.M. (BNA) 2113, 76 Lab.Cas. P 10,825 The UNIVERSITY OF CHICAGO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard L. Marcus, Chicago, Ill., for petitioner.
Elliott Moore, Deputy Associate Gen. Counsel, Robert A. Giannasi, Asst. Gen. Counsel and Howard E. Perlstein, Atty., National Labor Relations Bd., Washington, D. C., for respondent.
Before CLARK, Associate Justice, * SWYGERT and CUMMINGS, Circuit Judges.
Petitioner, The University of Chicago, seeks review of an NLRB order, 1 which found that it violated Section 8(d) and derivatively Sections 8(a)(1), 8(a)(2), and 8(a)(5) of the Act 2 when, during the Bottoming its decision on the lengthy opinion of the Administrative Law Judge, the NLRB held that the practice of the University in allocating cleaning areas between the two locals "was an inextricable, albeit inexplicit, part of the bargaining history that led up to the University's contract with Local 321 and was necessarily embodied in the contract's recognition clause," and concluded that the workplace assignment customarily performed by Local 321 could not be reassigned to be performed at the same location by the University's own employees represented by a different union. We can find no support for this novel theory either in the "bargaining history" of this case or in any legal precedents. In our view, the effort of the Board to thus read a jurisdictional guarantee into a recognition clause seriously impinges upon the fundamental rights of management and requires reversal.
term of a collective bargaining agreement, the University transferred custodial work from one bargaining unit (Local 321) to another (Local 1657) after bargaining to impasse over the transfer.
The Board, as well as the Administrative Law Judge, appears to have totally ignored the real grounds on which the University predicated the transfer and has stretched to discredit the employer's decision by ascribing the work transfer to a mere desire to cut down pay rates. We are therefore obliged to trace the history of this controversy in a more detailed manner than would otherwise be necessary.
The University of Chicago is a private university whose 8,000 students matriculate in either professional schools or academic divisions. This case involves the Biological Sciences Division (hereafter the "BSD") organizationally the largest academic division. The BSD is comprised of both nonclinical academic departments, such as Botany and Zoology, and clinical departments, such as Surgery and Medicine, where students seeking an M. D. degree receive most of their instruction, since the University has no separate, formal "medical school". The BSD also administers the University of Chicago Hospitals and Clinics.
The clinical departments of the BSD are all housed in the University of Chicago Hospitals and Clinics, a labyrinth of about eleven inter-connected buildings. Some of the buildings are conventional hospitals devoted largely to patient care; others principally contain classrooms, laboratories, libraries, offices, and research facilities and still others serve a dual role. Patient care areas and academic facilities in the complex abut each other at certain points.
The University employs about 7,500 persons in such non-academic pursuits as building maintenance; housekeeping and food service in residence halls, hospitals, and clinics; and custodial work in various campus buildings. For the past 25 years, the University has maintained a collective bargaining relationship with Local 1657, American Federation of State, County, and Municipal Employees' Union, AFL-CIO, for a bargaining unit covering approximately 900 employees scattered throughout the University. For the same period, the University has also maintained a collective bargaining Prior to September 1, 1971, both Local 321 and Local 1657 represented custodians who cleaned and maintained the hospital complex. Nineteen of the three hundred Local 321 employees provided janitorial services in certain areas of the hospital complex. These few custodians originally were under the supervision of the University-wide Plant Department, even though the Plant Department is a separate administrative entity generally charged with the service and maintenance of all University structures other than the hospital complex. However, since 1965 these Local 321 custodians working in the hospital complex were actually supervised by personnel from the Biological Sciences Division rather than the Plant Department. For budget purposes, the compensation for these custodians was included within the Plant Department's budget and then reallocated to the BSD by an annual interdepartmental fund transfer.
relationship with Local 321, College, University, and School Employee's Union AFL-CIO for a unit covering approximately 300 employees equally scattered throughout the University.
The Local 321 custodians maintained most but by no means all, nonpatient areas. In these areas, they were responsible for wet-mopping classrooms, offices, laboratories, and corridors, picking up glass and other debris, emptying wastebaskets and ashtrays, and stripping and waxing of floors. They did not wash walls, clean any hospital rooms, operating rooms or other areas devoted principally to the immediate treatment of clinical patients.
All other areas in the hospital complex, including patient and nonpatient areas, were cleaned by Local 1657 custodians. These 182 custodians, however, were supervised by the General Services Department, an administrative department devoted primarily to janitorial duties within the hospital complex.
It is undisputed and the ALJ so found that the Local 1657 custodians performed a higher quality of cleaning and maintenance than did Local 321 custodians. Local 1657 employees washed walls, used germicidal detergents, and wet-mopped with far greater frequency than did Local 321 personnel. Many of the areas maintained by Local 1657 members were principally devoted to patient care, and therefore all areas maintained by Local 1657 were kept at a much higher degree of cleanliness than those offices, classrooms and other areas cleaned by Local 321 employees.
As stated previously, from time to time the University would relocate certain offices or laboratories, a fact which hindered attempts to distinguish the two units on a clincal-non-clinical basis. On one occasion, when the University desired to utilize Local 1657 employees to clean areas then maintained by Local 321 employees, it engineered a swap between the two locals of certain cleaning areas so that no loss of work was occasioned by either as a result of the changeover. For the most part, the University utilized certain benchmarks, such as a doorway or an archway, to delineate the boundaries of the two groups' respective cleaning responsibilities.
The Administrative Law Judge found that:
(I)t was not challenged, that the Dean's Office of BSD had, over a period of time, received an accumulation of complaints, coming principally from the medical faculty, to the effect that the portion of the medical-academic complex cleaned by Local 321 employees was inadequately maintained. The complaining physicians expressed a continuing desire to have all portions of the BSD maintained to the same level of cleanliness that existed in the patient-care sections.
Since about 1948, the University has recognized Local 321 as the collective bargaining representative of the non-patient care area custodians, among other employees in a University-wide unit, and many contracts have been negotiated. On September 1, 1970, a two-year collective bargaining agreement was entered into which in relevant part provided:
Section 2.1. The University recognizes the Council (which includes Local 321) as the exclusive collective bargaining agency for all employees . . . who are employed in the following classifications and departments:
A. Service and maintenance classifications in the Plant Department . . .
No mention was made in this or any previous contract of the nineteen Local 321 custodians in the hospital complex since they were regarded as technically still being within the Plant Department. The recognition clause between Local 1657 and the University covered, inter alia, "General Services . . . employees in the Hospitals and Clinics."
In early 1971, the Plant Department's budget was cut and a number of employees in the department were accordingly laid off. In order to accommodate the Union's desire to protect the nineteen Local 321 custodians from being bumped by other Plant Department employees displaced from their positions at other University sites, the University and Local 321 on May 7, 1971, added a new classification to the recognition clause of the existing contract, namely, "Janitors in the Biological Sciences Division", and also added to the contract a provision calling for departmental rather than unit-wide seniority in the Local 321 unit.
Subsequently, due to the nearly complete functional and geographical integration of patient-related functions and non-patient-related functions, the practice of attempting to limit the duties of the nineteen Local 321 custodians to essentially non-patient areas resulted in their assignment to disparate and often isolated portions of the hospital complex. With the exception of one building cleaned by five of the nineteen Local 321 custodians, no structure within the hospital complex was ever cleaned solely by either General Services Department or Plant Department personnel. In some cases, the division of cleaning functions was based only upon geographic demarcation. In some areas geographical distinctions between the areas cleaned by the two groups of custodians defied rhyme or reason. On some floors, one of the two groups would...
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