Lincoln County Memorial Hospital v. Missouri State Bd. of Mediation

• Decision Date: 04 April 1977
• Docket Number: No. KCD,KCD
• Citation: 95 L.R.R.M. 3110,549 S.W.2d 665
• Parties: 95 L.R.R.M. (BNA) 3110, 81 Lab.Cas. P 55,056 LINCOLN COUNTY MEMORIAL HOSPITAL, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, Respondent. 29042.
• Court: Missouri Court of Appeals

Page 665

549 S.W.2d 665

95 L.R.R.M. (BNA) 3110, 81 Lab.Cas. P 55,056

LINCOLN COUNTY MEMORIAL HOSPITAL, Appellant, v. MISSOURI STATE BOARD OF MEDIATION, Respondent.

No. KCD 29042.

Missouri Court of Appeals, Kansas City District.

April 4, 1977.

Peter J. Grewach, E. Rex Bradley, Troy, for appellant.

John C. Danforth, Atty. Gen., Christopher R. Brewster, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, C. J., and SHANGLER, DIXON, SWOFFORD, WASSERSTROM, SOMERVILLE and TURNAGE, JJ.

WASSERSTROM, Judge.

Lincoln County Memorial Hospital appealed under Section 105.525 (all statutory references herein being to RSMo 1969 unless otherwise noted) from a determination by the Missouri State Board of Mediation that all registered nurses of the Hospital, with one exception, constituted an appropriate unit for collective bargaining. From an affirmance by the circuit court of the Board's determination, the Hospital again appeals to this court.

On March 26, 1975, the Missouri Nurses Association petitioned the Board to resolve the issues of (a) the appropriate bargaining unit for nurses at the Hospital and (b) majority representation by the Association for the collective bargaining unit. The Board held a hearing on June 26, 1975, at which the Hospital and the Association both introduced evidence. The Hospital's evidence was to the effect that it had approximately 222 employees of whom 70 worked part-time; approximately 122 of the employees, including 29 registered nurses, staffed the Department of Nursing; the Hospital had designated ten of those registered nurses with supervisory titles; these "supervisors" perform certain supervisory functions including recommendations having effective weight respecting promotions, transfers, discipline and discharge; and they are paid additional compensation for the supervisory position.

The Association admitted that Mrs. Judith King, as Director of Nursing, occupies a supervisory capacity and that she therefore should be excluded from the unit, but the Association strongly denied that any of the other nine "supervisory" nurses in truth should be so classified. The evidence offered by the Association tended to prove that all of the registered nurses including the "supervisors" performed general nursing duties; that the supervisory duties relating to management are relatively minor; and that all recommendations of a supervisory nature made by the nine "supervisors" in question were subject to the final judgment of Mrs. King.

On August 26, 1975, the Board issued its Opinion, Findings and Orders, in which it found that all of the registered nurses with the exception of Mrs. King constituted an appropriate bargaining unit and directed that an election be held within that unit not later than October 1, 1975. On September 11, 1975, the Hospital filed its petition for review in the circuit court, and at the Hospital's request the court issued an order on September 12, 1975, staying the election pending judicial review.

The circuit court issued its order affirming the Board on July 7, 1976, from which the Hospital filed the present appeal on September 1, 1976. Pursuant to the Hospital's application, this court issued its order on October 25, 1976, further staying the holding of an election pending determination of this appeal. Because of the stay orders mentioned, the election order by the Board on August 26, 1975, has never yet been held.

On the present appeal, the Hospital assigns six points of error, the most serious of which complains of the inclusion in the bargaining unit of the nine registered nurses whom the Hospital insists are supervisors or managerial personnel. However, none of the errors assigned by the Hospital can be reached on this appeal unless this court has proper jurisdiction. That in turn depends on whether the Board's determination of the appropriate bargaining unit constitutes an appealable order. If it does not, then the circuit court lacks jurisdiction of the subject matter. National Ass'n of Women's and Children's Apparel Salesmen, Inc. v. F. T. C., 479 F.2d 139, 144, footnote 9 (5th Cir. 1973); Bd. of Tr. of Mem. Hosp. of Fremont County v. N. L. R. B., 523 F.2d 845 (10th Cir. 1975); State Board of Registration for Healing Arts v. Masters, 512 S.W.2d 150, l. c. 159 (Mo.App.1974).

And the want of jurisdiction by the circuit court would in turn deprive this court of the power to make any decision on the merits. Shepler v. Shepler, 348 S.W.2d 607, 609 (Mo.App.1961); Allen v. State Department of Public Health and Welfare, 479 S.W.2d 183, 186 (Mo.App.1972); Swetnam v. U. S. By-Products Corp., 510 S.W.2d 829, 831 (Mo.App.1974). Even though this jurisdictional issue has not been raised by the parties, it is the duty of this court to consider the problem sua sponte. Stone v. Stone, 393 S.W.2d 201, 204 (Mo.App.1965); Engel Sheet Metal Equipment, Inc. v. Shewman, 298 S.W.2d 434, 435 (Mo.1957); Conner v. Herd, 429 S.W.2d 333, 334 (Mo.App.1968); P. I. C. Leasing, Inc. v. Roy A. Scheperle Construction Co., Inc., 489 S.W.2d 219 (Mo.App.1972).

The question of whether an appeal lies from an administrative determination of the appropriate bargaining unit, prior to determination of majority representative status, is not answered by the wording of § 105.525, which is ambiguous in this regard. ¹ The same question has given rise to much litigation in other jurisdictions, with conflicting results. The rule followed uniformly in the federal courts under the National Labor Relations Act is that such an administrative determination is only interlocutory and is not separately appealable. Except in extraordinary situations, the aggrieved party must await the completion of the administrative process by an election certification and an order compelling the employer to enter into collective bargaining. This result is reached partially on the basis of the statutory language granting the right of appeal, contained in 29 U.S.C.A. § 160. However, these decisions, more importantly for our purposes, rest also in part upon grounds of public policy. Thus in a leading case, American Federation of Labor v. N. L. R. B., 308 U.S. 401, l. c. 409, 60 S.Ct. 300, 304, 84 L.Ed. 347 (1940) the Supreme Court discussed and relied upon Congressional history to show a legislative purpose to eliminate delay which had occurred under the previous federal law (Public Resolution 44) and which had permitted judicial review at the stage of the determination of the appropriate bargaining unit. In this connection, the Supreme Court quoted the committee report as follows:

" 'Weaknesses in Existing Law. * * * (6) Obstacles to elections. Under Public Resolution 44, any attempt by the Government to conduct an election of representatives may be contested ab initio in the courts, although such election is in reality merely a preliminary determination of fact. This means that the Government can be delayed indefinitely before it takes the first step toward industrial peace. After almost a year not a single case, in which a company has chosen to contest an election order of the Board, has reached decision in any circuit court of appeals.' Sen.Rep. No. 573, Committee on Education and Labor, 74th Cong., 1st Sess., pp. 5, 6.

"After referring to the procedure for review under Public Resolution 44, the House Committee declared: 'The weakness of this procedure is that under the provision for review of election orders employers have a means of holding up the election for months by an application to the circuit court of appeals. * * * At the present time 10 cases for review of the Board's election orders are pending in circuit court of appeals. Only three have been argued and none have been decided.' House Rep. No. 1147, Committee on Labor, 74th Cong., 1st Sess., p. 6."

So also, in another leading case, Boire v. Greyhound Corporation, 376 U.S. 473, l. c. 477-478, 84 S.Ct. 894, l. c. 897, 11 L.Ed.2d 849 (1964), the Supreme Court made the following observations concerning the public policy involved:

"That this indirect method of obtaining judicial review imposes significant delays upon attempts to challenge the validity of Board orders in certification proceedings is obvious. But it is equally obvious that Congress explicitly intended to impose precisely such delays. At the time of the original passage of the National Labor Relations Act in 1935, the House Report clearly delineated the congressional policy judgment which underlay the restriction of judicial review to that provided for in § 9(d):

'When an employee organization has built up its membership to a point where it is entitled to be recognized as the representative of the employees for collective bargaining, and the employer refuses to accord such recognition, the union, unless an election can promptly be held to determine the choice of representation, runs the risk of impairment of strength by attrition and delay while the case is dragging on through the courts, or else is forced to call a strike to achieve recognition by its own economic power. Such strikes have been called when election orders of the National Labor Relations Board have been held up by court review.' "

The same policy of furthering labor peace by not permitting delays in elections is reiterated in Bd. of Tr. of Mem. Hosp. of Fremont County v. N. L. R. B., supra, and in Bishop v. N. L. R. B., 502 F.2d 1024, 1027 (5th Cir. 1974).

A number of state courts in the application of state labor relations statutes have followed the above federal rule. City Manager of Medford v. State Labor Relations Commission, 353 Mass. 519, 233 N.E.2d 310 (1968); Worcester I. T. I. Instructors Ass'n v. Labor Relations Commission, 357 Mass. 118, 256 N.E.2d 287 (1970); Harrison v. Labor Relations Commission, 363 Mass. 548, 296 N.E.2d 196 (1973); Jordan Marsh Co. v. Labor Relations Commission, 312 Mass. 597, 45 N.E.2d 925 (1942); Town of Windsor v. Windsor Police Department Employees Ass'n, 154 Conn. 530, 227 A.2d...