Monmouth Medical Center v. N.L.R.B.

• Decision Date: 20 August 1979
• Docket Number: No. 78-1832,78-1832
• Citation: 604 F.2d 820
• Parties: 102 L.R.R.M. (BNA) 2282, 87 Lab.Cas. P 11,553 MONMOUTH MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital Professional and Allied Employees of New Jersey, Intervenor.
• Court: U.S. Court of Appeals — Third Circuit

Page 820

604 F.2d 820

102 L.R.R.M. (BNA) 2282, 87 Lab.Cas. P 11,553

MONMOUTH MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Hospital Professional and Allied Employees of New Jersey, Intervenor.

No. 78-1832.

United States Court of Appeals, Third Circuit.

Argued March 22, 1979.

Decided Aug. 20, 1979.

Francis X. Dee (argued), Edward F. Ryan, Laurence Reich, Carpenter, Bennett & Morrissey, Newark, N. J., for petitioner.

Vivian A. Miller (argued), Kenneth B. Hipp, John S. Irving, John E. Higgins, Jr., Robert E. Allen, Elliott Moore, Washington, D. C., for respondent.

Alfred G. Osterweil (argued), Osterweil, Wind & Loccke, Edgewater, N. J., for intervenor.

Before GIBBONS and HUNTER, Circuit Judges, and MEANOR, ^* District judge.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

I.

This case is before the Court on a petition by Monmouth Medical Center (the Hospital) to review, and a cross-application of the National Labor Relations Board (the Board) to enforce, an order issued by the Board against the Hospital. ¹ The order directs the Hospital to bargain collectively with the Hospital Professionals and Allied Employees of New Jersey (the Union). It is predicated on the Board's decision that the Hospital's refusal to bargain with the Union constituted an unfair labor practice in violation of section 8(a)(1) and (5) of the National Labor Relations Act. ²

Whether the Hospital's refusal to bargain was an unfair labor practice depends on whether the Union was properly certified by the Board as the collective bargaining representative of the Hospital's employees. The Hospital alleged that the representation election which the Union won was flawed by improper pre-election conduct and that certification of the Union following such an election was therefore invalid. The Board rejected the Hospital's objection at the initial representation proceeding and declined to reconsider it at the unfair labor practice hearing. We conclude that the Board's certification decision was inconsistent with case law and with previous decisions of the Board itself and amounted to an abuse of discretion. Since the Union was not properly certified as the bargaining representative, the Hospital committed no unfair practice when it refused to bargain. The Hospital's petition will be granted, the order will be denied enforcement, and the disputed election will be set aside.

II.

On June 16, 1977, the Board conducted a secret ballot election in a unit consisting of the Hospital's full-time and regular part-time registered nurses and graduate nurses. Of approximately 320 eligible voters, 284 cast valid ballots. The Union won the election by a vote of 148 for the Union to 136 against the Union an effective difference of six votes. The Hospital filed objections to the election, alleging Inter alia, that the election should be set aside because the Union "misused and abused the National Labor Relations Board's processes to secure a partisan advantage in that it represented to unit employees, directly and indirectly, that the . . . Board endorsed (the Union) in the election". To support this objection, the Hospital submitted six pieces of literature which had been distributed by the Union during the pre-election campaign.

The first piece of literature, "Exhibit A", is an official Board-published election pamphlet, entitled "Your Government Conducts an Election", to which the message "Vote Yes June 16 MMC Auditorium" has been added by hand. At least ten of these altered documents were distributed to voters in May, 1977, by the co-chairperson of the Union's local steering committee.

The second piece of literature, "Exhibit B", was mailed to unit employees on or about June 9, 1977. It states, in part:

. . . On June 13th, there will be a hearing at the National Labor Relations Board regarding the Unfair Labor Practices charged against the Hospital by members of your Steering Committee. The NLRB conducts such hearings only after investigation and rendering merit to such charges. (Emphasis added.) The (Union) has Not nor could we be, charged with violating any standard of conduct or representation set to preserve the rights of employees. This hearing proves the Hospital cannot make such a claim. If Mr. Pilla attempted to file such a charge he would realize that he does not stand a chance in a formal hearing as the daily mutilation of the facts would not stand up as credible evidence at the Labor Board.

Prior to the distribution of Exhibit B, on March 22, 1977, the Union had mailed a letter, "Exhibit C", which reads in pertinent part:

. . . If any misguided friend of the administration, probably unaware that they are putting themselves in Criminal jeopardy, threaten to take any negative action against you whatsoever for joining or showing interest in a union, that person has violated a federal law. (Emphasis added)

WHAT CAN HAPPEN TO THOSE WHO COMMIT AN UNFAIR LABOR PRACTICE?

The law provides that those who commit such violations of the Labor Act can be fined up to $5,000.00 and possibly imprisoned up to one year, or both.

At about the same time that Exhibit B was mailed, the Union mailed another leaflet, "Exhibit D", which states in part:

Something to think about : The attorneys and agent of the National Labor Relations Board, to whom the hospital and the employees are subject to regarding collective bargaining, ARE UNIONIZED themselves. These people, who are privy to more information than anyone else regarding unions have chosen to unionize years ago. (emphasis in original).

When the experts have chosen this particular method, can it really be the wrong one?

Vote "Yes"

June 16th.

In early and mid-May, the Union mailed two additional leaflets. The first leaflet, "Exhibit E" states in pertinent part:

It is easier for the administrations anti-union campaign, financed with tax deductible hospital funds, to start rumors and spread half-truths than it is for us to send out letters correcting the intentional misinformation many people are being given. WE have nothing to gain by lying to you. When something you hear from the anti-union people contradicts what union organizers have told you, there is any easy way to find out who is telling the truth. Just call the Officer of the Day at the National Labor Relations Board at 645-2100. WE have nothing to hide.

The second leaflet, "Exhibit F", which was mailed within the same time period and context as Exhibit E, but to employees voting in an election unit not at issue here, states in pertinent part:

If you doubt in any way information given you by the administration or by a representative of the union, we urge you to call the National Labor Relations Board at 645-2100 to verify what you've been told.

The Regional Director of the NLRB conducted an administrative investigation into the Hospital's objections. In his Report on Objections, he concluded that Exhibits A and B were not objectionable, but that Exhibits C, D, E, and F were. Accordingly, he recommended that the election be set aside and that a new election be directed. Both the Hospital and the Union filed exceptions to the Regional Director's report. The Board delegated its authority to hear the exceptions to a three member panel. The panel, in a 2-1 decision, overruled the Hospital's objections, effectively reversing the Regional Director, and certified the Union as the exclusive bargaining representative of the Hospital's registered and graduate nurses.

The Hospital refused to bargain with the Union, and an unfair labor practice hearing was commenced. ³ The proceeding was conducted by the same panel which had overruled the Hospital's objections to certification. At the hearing the Hospital defended its refusal to bargain by arguing that the Board had improperly overruled the Hospital's objections to the election and that, therefore, the Board's certification of the Union was invalid and could not provide the basis for finding an unlawful refusal to bargain. The panel rejected this argument, again by a 2-1 vote, and granted summary judgment in favor of the NLRB.

Since the Board's Decision and Order is premised upon its certification of the June 16, 1977 election, we must consider the validity of the Board's certification of the representation election. ⁴ We are mindful that the Board has "wide discretion" in establishing the procedure and safeguards for conducting representation elections, NLRB v. A. J. Tower Co.,329 U.S. 324, 330, 67 S.Ct. 324, 91 L.Ed. 322 (1946). Nevertheless, the Board's decision must be reasonably consistent with its previous decisions. In Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976) we observed:

In articulating the "basis for its order", the Board is free to refer "to other decisions or its general policies laid down in its rules and its annual reports." (NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443 n.6, (85 S.Ct. 1061, 13 L.Ed.2d 951) (1965)). However, where the Board has reached different conclusions in prior cases, it is essential that the "reasons for the decisions in and distinctions among these cases" be set forth to dispel any appearance of arbitrariness. ⁵ (Id. at 442, (95 S.Ct. 1061).

Id. at 357. Accord, NLRB v. Saint Francis College, 562 F.2d 246, 252 (3d Cir. 1977); St. Vincent's Hospital v. NLRB, 567 F.2d 588, 590 (3d Cir. 1977); NLRB v. Osborn Transportation, Inc., 589 F.2d 1275, 1279 (5th Cir. 1979) ("In exercising the discretion entrusted it in representation matters, the Board must faithfully adhere to the policies and procedures previously announced in its rules and decisions"). In reviewing a Board decision, we may not "abdicate" our responsibility to assure "that the Board keeps within reasonable grounds". Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).

III.

The gravamen of the Hospital's complaint is that the literature mailed, distributed, and posted by the Union misrepresented the...