N.L.R.B. v. Annapolis Emergency Hosp. Ass'n, Inc.

• Decision Date: 06 June 1977
• Docket Number: No. 76-1166,76-1166
• Citation: 561 F.2d 524
• Parties: 96 L.R.R.M. (BNA) 2224, 82 Lab.Cas. P 10,105 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANNAPOLIS EMERGENCY HOSPITAL ASSOCIATION, INC., d/b/a Anne Arundel General Hospital, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 524

561 F.2d 524

96 L.R.R.M. (BNA) 2224, 82 Lab.Cas. P 10,105

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ANNAPOLIS EMERGENCY HOSPITAL ASSOCIATION, INC., d/b/a Anne

Arundel General Hospital, Respondent.

No. 76-1166.

United States Court of Appeals, Fourth Circuit.

Argued June 6, 1977. ^*

Decided Aug. 31, 1977.

Richard A. Cohen, Atty., N. L. R. B., Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Carl L. Taylor, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Aileen A. Armstrong, Atty., N. L. R. B., Washington, D. C., on brief), for petitioner.

N. Peter Lareau, Baltimore, Md. (A. Samuel Cook, Christopher H. Mills, Venable, Baetjer & Howard, Baltimore, Md., on brief), for respondent.

Herbert J. Belgrad, Kaplan, Heyman, Greenberg, Engelman & Belgrad, Baltimore, Md., on brief, for amici curiae.

Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER and HALL, Circuit Judges, sitting in banc.

WINTER, Circuit Judge:

This case was argued initially before a panel of the court and the late Judge Craven prepared an opinion in which Judge Hall concurred. Judge Winter prepared a dissenting opinion. Both opinions are annexed hereto as an appendix to this opinion. Before the panel opinions were filed, a motion was made within the court to rehear the case in banc and the motion carried. Before reargument in banc was heard, Judge Craven died.

After reargument in banc, Chief Judge Haynsworth, Judge Winter, Judge Butzner, Judge Russell and Judge Widener vote to deny enforcement of the Board's order for the reasons set forth in Judge Winter's panel opinion, which they adopt, and the additional statement which follows. Judge Hall would grant enforcement of the Board's order for the reasons set forth in Judge Craven's panel opinion, which Judge Hall adopts as his dissenting opinion from the decision of the in banc court.

In addition to the issues discussed in Judge Winter's opinion, we must deal with another argument advanced by the Board to the in banc court. In its closing oral argument the Board asserted, for the first time, that, because of the employer's failure to comply with § 10(e) of the Act, 29 U.S.C. § 160, the court was foreclosed from considering the legality of the Board's order certifying MNA as the employees' collective bargaining representative on condition that MNA not do the collective bargaining. This argument was not advanced in the Board's initial brief, or in its supplemental brief on rehearing in banc, or in its oral arguments to the original panel, or in its opening argument to the in banc court. The Board was not unaware of § 10(e) because it did invoke § 10(e) throughout the proceedings and the briefs with respect to other arguments made by MNA that we think it unnecessary to consider. The argument was, indeed, late, especially as counsel had received the advice set forth in the extract of letter appearing in the margin. ¹

Section 10(e) provides:

No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.

If we assume that the Board is not foreclosed by its own tardiness in invoking § 10(e), we nevertheless think that § 10(e) is not a bar to our consideration of the merits of the issue because (1) its purpose was fully served, (2) the hospital sufficiently raised the issue in the administrative proceedings, and (3) in any event, the Board's error was a purely legal one, so basic in its nature that § 10(e) has no application. We elaborate on these reasons. The beginning point is a summary of the issues raised before the Board in the various steps in the administrative proceedings.

The petition for representation was filed October 1, 1974, and hearings were held shortly thereafter. The employer filed a brief before the Regional Director on November 4, 1974, asserting that MNA was not a labor organization within the meaning of § 2(5) of the Act. While the brief discussed the problem of supervisory personnel, it did not otherwise elaborate on the issue. When the Regional Director ordered an election, the employer filed a petition for review, again expressing its opposition on the ground that MNA did not have the status of a labor organization within the meaning of § 2(5) because it was dominated and controlled by supervisory personnel.

The Regional Director concluded to reopen the record and scheduled another hearing. However, on the same day that the new hearing was scheduled to be held, the case was transferred to the Board.

Thereafter, the Board conducted an additional hearing on January 9, 1975, and the parties simultaneously filed briefs on February 6, 1975. MNA argued (1) that it was a labor organization within § 2(5) because none of the employer's supervisors were on the Board of MNA, and (2) for the first time, MNA asserted that it had delegated its collective bargaining activities to the professional chapters. MNA noted that the negotiating committee was chosen by the members of the chapter and contracts had to be ratified by the chapter. The employer persisted in its argument that MNA was controlled by supervisory employees and that the chapters were influenced and controlled by MNA. It did not respond to MNA's assertion that MNA had delegated its bargaining function to the chapters, because the briefs were filed simultaneously and the assertion on the part of MNA was new. Board regulations do not permit the filing of a reply brief except upon special leave of the Board, 29 C.F.R. § 102.67(i).

The Board's supplemental decision and direction of election (which in the main text we construe to mean that the Board certified MNA solely on condition that it not do the bargaining) was filed May 7, 1975. Admittedly, the employer did not file a petition for reconsideration pursuant to 29 C.F.R. § 102.65(e)(1). ²

When the employer refused to bargain, an unfair labor practice complaint was filed. In answering it, the employer alleged that MNA was incompetent to serve as the exclusive bargaining representative of the employees, and it asserted that MNA had not been properly certified as the exclusive bargaining representative. It admitted that it had declined to bargain, but justified its refusal for the reasons stated. General Counsel moved for summary judgment, and in opposition to that motion the employer again argued that MNA was not a bona fide, exclusive representative of the employees and that MNA was influenced, dominated and controlled by supervisory employees. The Board, however, granted summary judgment, finding that the employer had committed an unfair labor practice in declining to bargain and it issued the customary bargaining order.

From this summary, it first appears that the concept of certifying MNA on condition that it not bargain was one that originated with the Board and was not one that was urged by the parties. The obvious purpose of § 10(e) is to permit the Board to act without being unfairly surprised by the consequences of its action. However, when the Board itself originates the concept of the action it takes, and does so at a time when the employer has something less than an unqualified right to advance to the Board the reasons why it thinks the Board's action is illegal, we think that there was sufficient compliance with § 10(e) so that § 10(e) does not constitute a bar to the employer's direct attack on the alleged invalidity in a reviewing court.

Next, it is clear that throughout the administrative proceedings the employer was constant in its assertion that MNA could not properly be certified because it was dominated by supervisory personnel and that as a consequence certification should be denied. The implied premise of such an argument was that, if certified, MNA was to be the bargaining agent, and that if MNA was not certified, no entity should be certified. The premise was tantamount to an assertion of the obvious, namely that a bargaining agent would bargain. By its order, the Board rejected the premise, but it cannot be said that the issue was not before it.

Finally, it is certain that the principal defect which we perceive in the Board's order is a purely legal one, namely that under the Act the Board may not certify a bargaining agent on condition that it not bargain. The Board has, in our view, exceeded its legal powers. We think, therefore, that § 10(e) is inapplicable because "the Board has patently traveled outside the orbit of its authority so that there is, legally speaking, no order to enforce." NLRB v. Cheney California Lumber Co., 327 U.S. 385, 388, 66 S.Ct. 553, 554, 90 L.Ed. 739 (1946). See also NLRB v. Ochoa Fertilizer Corp., 368 U.S. 318, 322, 82 S.Ct. 344, 7 L.Ed.2d 312 (1961).

ENFORCEMENT DENIED.

CRAVEN, Circuit Judge:

The Employer, Anne Arundel General Hospital, refused to bargain with the newly certified representative of its rank-and-file registered nurses, the Maryland Nurses Association (MNA), on the asserted ground that MNA was not a bona fide labor organization due to the presence of supervisors in its hierarchy. The National Labor Relations Board found that the Employer violated 29 U.S.C. § 158(a)(5) by its refusal to bargain and entered an appropriate bargaining order. We grant the Board's petition for enforcement.

I.

Congress, in July of 1974, amended the National Labor Relations Act to bring within its protective ambit the employees of private nonprofit hospitals. Thereafter the MNA petitioned the Board on October 1, 1974, to authorize the election of a collective bargaining representative by registered nurses of the Employer. At initial pre-election hearings the Employer disputed the MNA's eligibility to be a bargaining representative on the basis that it was not a bona fide "labor organization" within the meaning of the National Labor Relations Act due to ...