Long Island College Hospital v. New York State Labor Relations Bd.

• Decision Date: 03 May 1973
• Docket Number: I,AFL-CI
• Parties: , 298 N.E.2d 614, 85 L.R.R.M. (BNA) 2580, 71 Lab.Cas. P 53,125 In the Matter of the LONG ISLAND COLLEGE HOSPITAL, Respondent-Appellant, v. NEW YORK STATE LABOR RELATIONS BOARD, Appellant-Respondent, Local 144, Hotel, Hospital, Nursing Home and Allied Service Employees Union, SEIU,ntervenor-Appellant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 449

345 N.Y.S.2d 449

32 N.Y.2d 314, 298 N.E.2d 614, 85

L.R.R.M. (BNA) 2580,

71 Lab.Cas. P 53,125

In the Matter of the LONG ISLAND COLLEGE HOSPITAL,

Respondent-Appellant, v. NEW YORK STATE LABOR RELATIONS BOARD, Appellant-Respondent,

Local 144, Hotel, Hospital, Nursing Home and

Allied Service Employees Union, SEIU,

AFL-CIO,

Intervenor-Appellant-Respondent.

Court of Appeals of New York.

May 3, 1973.

Martin D. Heyert, T. R. Iserman, F. T. Shea and Eugene T. D'Ablemont, New York City, for respondent-appellant.

Norbert M. Phillipps, Robert T. Snyder and Steven W. Davis, New York City, for appellant-respondent.

Judith P. Vladeck, New York City, for intervenor-appellant-respondent.

FULD, Chief Judge.

In 1963, Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union filed a representation petition with the New York State Labor Relations Board seeking certification as the exclusive bargaining representative of service and maintenance employees of Long Island College Hospital. Following hearings, the board directed two elections among the employees involved. One was among the service employees; they did not select a bargaining representative and so much of the petition as involved them was dismissed. The second election was conducted among the hospital's skilled maintenance employees. They voted (1) to bargain as a separate unit, limited to such employees and (2) to be represented for the purpose of collective bargaining by the union.

On objections to the elections filed by both the union and the hospital, the board conducted an informal investigation. It concluded that the objections were insufficient on their face and, in any event, that there was insufficient evidence to warrant a hearing. The board thereupon (in December, 1964) certified Local 144 as the exclusive bargaining representative of the skilled maintenance employees. The hospital disputed the board's certification on various grounds and refused to bargain with the union. Instead of filing an unfair labor practice charge against the hospital on that ground under the State Labor Relations Act (Labor Law, § 704, subd. 6), the union invoked the mediation, fact-finding and compulsory arbitration proceedings of section 716, which the Legislature had made available to hospital employees when, in the course of bringing nonprofitmaking hospitals under the jurisdiction of the board in 1963 (§ 715), it enacted legislation prohibiting strikes by such employees (§ 713). The hospital thereupon brought an action which in effect sought to restrain proceedings under section 716. When the matter came before our court in 1968, we decided in favor of the hospital, holding that the proper procedure was for the union to file a refusal to bargain charge and that the arbitration order of the Industrial Commissioner was to be stayed until the union's certification had been judicially reviewed and found valid and enforceable. (Long Is. Coll. Hosp. v. Catherwood, 23 N.Y.2d 20, 294 N.Y.S.2d 697, 241 N.E.2d 892, app. dsmd., Ottley v. Long Is. Coll. Hosp., 394 U.S. 716, 89 S.Ct. 1457, 22 L.Ed.2d 672.)

In accordance with our decision in that case (23 N.Y.2d 20, 294 N.Y.S.2d 697, 241 N.E.2d 892, Supra), Local 144 filed its unfair labor practice--refusal to bargain--charge with the board, and thereupon a formal complaint was issued against the hospital. At the hearings which followed, the hospital not only attacked the board's original certification order of 1964, determining that the skilled maintenance workers constituted an appropriate bargaining unit, but interposed new matters concerning, among other things, alleged improprieties in the conduct of the election. After thorough consideration of these issues, the board adhered to its earlier decision and entered an order, dated June 30, 1971, which directed the hospital to cease and desist from refusing to bargain with Local 144 and extended its certification for one year from the date of its order or from the completion of any judicial review of that order.

On appeal, the Appellate Division, by a divided court, annulled the board's order and directed a new election (39 A.D.2d 913, 333 N.Y.S.2d 23). Although the court unanimously upheld as proper (1) the board's decision to have a self-determination election only among the hospital's skilled maintenance employees, (2) the board's use of a multi-question ballot and (3) its method of tallying the votes, a majority refused to confirm the board's certification and its bargaining order on several grounds: the ballot should have been bilingual and not soley in English; there were insufficient Spanish-language notices of election for distribution to the maintenance workers; and the union's 'Special Edition' of its publication contained inaccuracies and was distributed at a time when the hospital could not make an effective reply.

I. Appropriateness of Unit

The Appellate Division was eminently correct insofar as it affirmed the board's determination that the hospital's skilled maintenance employees constituted an appropriate bargaining unit. The board has an exceedingly broad discretion in fixing appropriate bargaining units. (See, e.g., Matter of Metropolitan Life Ins. Co. v. New York State Labor Relations Bd., 280 N.Y. 194, 209, 20 N.E.2d 390, 396; Pittsburgh Glass Co. v. N.L.R.B., 313 U.S. 146, 165--166, 61 S.Ct. 908, 85 L.Ed. 1251; Packard Motor Car Co. v. Labor Bd., 330 U.S. 485, 486, 491, 67 S.Ct. 789, 91 L.Ed. 1040.) As the Supreme Court declared in the Packard Co. case (330 U.S., at p. 491, 67 S.Ct. at p. 793), 'The issue as to what unit is appropriate for bargaining is one for which no absolute rule of law is laid down by statute, and none should be by decision. It involves of necessity a large measure of informed discretion, and the decision of the Board, if not final, is rarely to be disturbed.' Indeed, when this case was previously before us, we stated in no uncertain terms that 'questions as to representation, including any issue as to the appropriate bargaining unit, call particularly for the expert judgment of the Labor Board. As we wrote in Matter of Levinsohn Corp. (Joint Bd. of Cloak, Suit, Skirt & Reefer Makers' Union) (299 N.Y. 454, 466, 87 N.E.2d 510), in speaking of the powers of the National Labor Relations Board to deal with representation issues--and this applies with equal force to the State Labor Board--'The Federal courts have uniformly recognized that because of the complexity and difficulty of the problem of designating the Appropriate unit, the power to make the decision has been delegated exclusively to the expert judgment of the board which has wide discretion in making the determination" (23 N.Y.2d, at pp. 34--35, 294 N.Y.S.2d at p. 702, 241 N.E.2d at p. 895).

Since the determination of an appropriate bargaining unit 'is more nearly 'legislative' than 'adjudicative" (Utica Mut. Ins. Co. v. Vincent, 2 Cir., 375 F.2d 129, 134, cert. den. 389 U.S. 839, 88 S.Ct. 63, 19 L.Ed.2d 102), the judicial review to which it will be subjected is narrow and circumscribed. The question posed is this: is the determination 'arbitrary' or 'capricious,' not is it supported by substantial evidence. (See Matter of Metropolitan Life Ins. Co. v. New York State Labor Relations Bd., 280 N.Y. 194, 209, 20 N.E.2d 390, 396, Supra; May Stores Co. v. Labor Bd., 326 U.S. 376, 380, 66 S.Ct. 203, 90 L.Ed. 145; Foreman & Clark, Inc. v. National Labor Relations Bd., 9 Cir., 215 F.2d 396, 405--406, cert. den.348 U.S. 887, 75 S.Ct. 207, 99 L.Ed. 697; N.L.R.B. v. Tennessee Packers, Inc., Frosty Morn Div., 379 F.2d 172, 182, cert. den. 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364.)

It is for the board to establish 'in each case' on 'employer unit, multiple employer unit, craft unit, plant unit, or any other unit' (Labor Law, § 705, subd. 2). Although it may well be that more than one unit might properly be found appropriate, it is settled by numerous cases, decided under the National Labor Relations Act--and there is no reason for a different rule under the State act--that 'the Board has the responsibility of making (that) determination.' (General Instrument Corp. v. N.L.R.B., 4 Cir., 319 F.2d 420, 423, cert. den. 375 U.S. 966, 84 S.Ct. 484, 11 L.Ed.2d 415; see, also, Corrie Corp. of Charleston v. N.L.R.B., 4 Cir., 375 F.2d 149, 154; Packard Co. v. Labor Bd., 330 U.S. 485, 491, 67 S.Ct. 789, 91 L.Ed. 1040, Supra; Overnite Transp. Co. v. N.L.R.B., 4 Cir., 327 F.2d 36, 39.) The record before us reveals the board's care in determining that the hospital's skilled maintenance employees was the appropriate bargaining unit. Not only did the board conduct a general public hearing concerning the problems involving appropriate bargaining units at hospitals, during which the opinions of both employers and unions in the field were received but also, in several individual representation proceedings--including one involving the very hospital before us--it conducted lengthy hearings at which the parties were afforded an opportunity to present evidence relating to unit issues. ¹

Without merit is the hospital's argument that the unit selected may improperly fragment the hospital into numerous small units. Not only does the statute not preclude 'fragmentation' but it declares that, in establishing an appropriate unit, the guide is that the board 'insure to employees the full benefit of their right to self-organization, to collective bargaining and otherwise * * * effectuate the policies of this article' (Labor Law, § 705, subd. 2). This is accomplished at times by establishing a small bargaining unit limited to those employees who constitute a homogeneous group and desire the benefits of collective bargaining. (See, e.g., Matter of Liberty Maimonides Hosp., 29 NYSLRB 464, 466--467; Matter of Carson C. Peck Mem. Hosp., 32 NYSLRB 323, 326--327.) Actually, the board's practice in allowing skilled maintenance employees in hospitals to form a separate bargaining unit if the...