Henry Ford Health System v. N.L.R.B., s. 95-6173
| Citation | 105 F.3d 1139 |
| Decision Date | 04 February 1997 |
| Docket Number | 95-6174,95-6302,Nos. 95-6173,s. 95-6173 |
| Parties | 154 L.R.R.M. (BNA) 2353, 133 Lab.Cas. P 11,768 HENRY FORD HEALTH SYSTEM (95-6173) and Cottage Hospital of Grosse Pointe (95-6174), Petitioners/Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD (95-6302), Respondent/Cross-Petitioner, Michigan Association of Police, Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Stewart J. Katz (argued & briefed), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, for Cottage Hospital of Grosse Pointe and Henry Ford Health Systems.
Aileen A. Armstrong, Deputy Asso. Gen. Counsel, Peter Winkler (briefed), Vincent J. Falvo, Jr. (argued and briefed), National Labor Relations Board, Washington, DC, for National Labor Relations Board.
Daniel J. Hoekenga, M. Catherine Farrell (argued and briefed), Hoekenga & Farrell, Southfield, MI, for Michigan Association of Police.
Before: KENNEDY and BATCHELDER, Circuit Judges; EDGAR *, District Judge.
In this case, two hospitals petition this court to vacate a supplemental order of the National Labor Relations Board (Board or NLRB) requiring the hospitals to bargain collectively with a union certified as the representative of the guards employed by these hospitals. The Board has submitted a cross-application for enforcement of the supplemental order. The parties dispute the propriety of the Board's underlying decision which found that the Board's certification of the union did not violate section 9(b)(3) of the National Labor Relations Act (NLRA or Act). That section prohibits the Board from certifying a bargaining unit of guards if it admits non-guards. For the following reasons, we will enforce the Board's order.
In a petition filed with the Board in January 1990, the Michigan Association of Police (MAP or the Union), a labor organization, sought to represent a unit including "[a]ll Security officers and Parking officers" employed by Detroit Receiving Hospital/Detroit Medical Center (DMC). Subsequently, MAP and DMC entered into a Stipulated Election Agreement, approved by the Regional Director (Director), which set forth as the appropriate collective-bargaining unit: "All full-time and regular part-time security officers, parking officers and dispatchers employed by [DMC] ... but excluding all group leaders and supervisors as defined in the Act, and all other employees." An election was held and, on March 2, 1990, the NLRB certified MAP to represent a collectivebargaining unit comprised of "[a]ll ... security officers, parking officers and dispatchers."
On May 30, 1990, MAP petitioned the NLRB seeking certification to represent a unit of security guards employed by Henry Ford Health System (HFHS). HFHS challenged the certification, claiming that MAP was disqualified under section 9(b)(3) of the NLRA. Specifically, the hospital contended that MAP was disqualified because DMC did not employ "parking officers", but it did employ "parking attendants" and "valet drivers," who were in fact the "parking officers" included in the unit. HFHS argued that these "parking attendants" and "valet drivers" were not statutory guards.
On July 13, 1990, the Director issued a decision and direction of election. The Director found that the unit listed on the Certification of Representative for DMC did not include parking attendants and valet drivers, but rather included only "security officers, parking officers and dispatchers." Although the parking attendants and valet drivers may have been on the Excelsior eligibility list 1 and may have voted in the election, the Director reasoned that
this falls short of establishing ... that these two classifications are part of the recognized unit. No evidence was presented to establish that DMC and the [Union] have entered into a contract encompassing these two classifications, that DMC recognized or bargained with the [Union] in respect to these two classifications, or that the [Union] has admitted them into membership.
Therefore, the Director concluded that HFHS had not established that MAP was disqualified to represent guards under section 9(b)(3).
On July 31, 1990, because of the allegations made in the HFHS proceedings regarding the composition of the DMC unit, MAP sent a letter to Dan Zulke, Director of Human Resources at DMC. The letter stated:
This is to officially notify you that the Michigan Association of Police as a certified bargaining agent for the guards at Detroit Medical Center, makes no claim to represent non-guard personnel.... As [MAP] intends to represent only guards as defined by the Act in the private sector, it will not make any demands regarding any non-guard employees nor will it admit to membership any private sector non-guards.
In addition, on November 9, 1990, MAP sent a letter to Patrick Greaves, Vice President of Human Resources at DMC, because it had come to MAP's attention that a number of parking attendants had been notified by Greaves that their vacation time was not being "brought down" by the hospital because they belonged to the bargaining unit. The letter stated that "[i]t is the Union's position that we do not represent parking attendants nor valet parkers at [DMC]."
HFHS declined to recognize or bargain with MAP on the ground that it represented non-guards. MAP filed unfair labor practice charges with the Board and, after investigation, the Board's General Counsel issued a complaint against the hospital, alleging that its refusal to bargain violated sections 8(a)(1) and 8(a)(5) of the NLRA. 2 The hospital admitted the refusal to bargain, but asserted that MAP had been improperly certified because the DMC unit included non-guards.
The Board found that the hospital had violated the Act by refusing to bargain with the Union. Henry Ford Health Sys., 303 N.L.R.B. No. 43, 1991 WL 146829 (1991). On January 13, 1992, the Board applied to this Court for enforcement of its orders against three hospitals, including HFHS, which had all asserted the same challenge to MAP's qualifications. While the consolidated case was pending, the Board issued a decision finding that Cottage Hospital also had violated the NLRA by refusing to bargain with MAP. Cottage Hosp. of Grosse Pointe, 306 N.L.R.B. No. 106, 1992 WL 44696 (1992). The Board subsequently applied to this court for enforcement of its order against Cottage Hospital, but the case was suspended while the consolidated case was considered.
A panel of this Court affirmed the Board's order in part, but remanded the cases to the Board to reconsider in light of new evidence. NLRB v. Children's Hosp. of Mich., 6 F.3d 1147, 1148 (6th Cir.1993). The hospitals had filed a motion with this Court for consideration of "newly discovered evidence" consisting of: (1) a petition filed by MAP, after the parties had filed their appellate briefs, seeking to clarify the DMC unit, and the resulting order by the Director clarifying that unit by deleting "parking officers" from the certified unit; and (2) testimony of a MAP official in a pre-election hearing at St. Mary's Hospital of Livonia regarding union membership. See id. at 1152. We found that section 10(e) of the NLRA, 29 U.S.C. § 160(e), required that we remand to the NLRB to reconsider its decision regarding the DMC unit in light of this newly discovered "material" evidence. 3 See id. at 1153-54. Subsequently, we remanded the Cottage Hospital case to the Board in light of the same newly discovered evidence. NLRB v. Cottage Hosp. of Grosse Pointe, No. 92-6557, 1994 WL 75919 (6th Cir. Mar.8, 1994).
On May 24, 1995, the Board issued a Supplemental Decision and Order, affirming its prior orders. 4 HFHS and Cottage Hospital, the employers remaining in this action, now ask us to set aside this order, while the Board seeks its enforcement.
The Board's findings of fact are "conclusive" when supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 487-88, 71 S.Ct. 456, 464-65, 95 L.Ed. 456 (1951). "We will enforce the Board's order if its fact-finding and application of law to facts are supported by substantial evidence, unless the Board has premised its ruling upon an erroneous legal foundation." Dacas Nursing Support Sys., Inc. v. NLRB, 7 F.3d 511, 513 (6th Cir.1993). In reviewing the Board's findings, we may not "displace the Board's choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo." Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465; Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292, 1297 (6th Cir.1988).
Section 9(b) of the NLRA authorizes the Board to determine "the unit appropriate for purposes of collective bargaining." 29 U.S.C. § 159(b). However, Congress has limited the Board's authority through section 9(b)(3), which provides in pertinent part that the Board shall not
decide that any unit is appropriate for such purposes if it includes, together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises; but no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.
29 U.S.C. § 159(b)(3). We have explained that guard employees can join a union that also represents non-guards, and that an employer may, if it wishes, recognize such a union for collective bargaining purposes. NLRB v. White Superior Div., White Motor Corp., 404 F.2d 1100, 1103 (6th Cir.1968). However, the Board cannot certify a guard/ non-guard...
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