N.L.R.B. v. Mercy Hospitals of Sacramento, Inc.

• Citation: 589 F.2d 968
• Decision Date: 12 June 1978
• Docket Number: No. 76-3579,76-3579
• Parties: 98 L.R.R.M. (BNA) 2800, 84 Lab.Cas. P 10,676 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MERCY HOSPITALS OF SACRAMENTO, INC., Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 968

589 F.2d 968

98 L.R.R.M. (BNA) 2800, 84 Lab.Cas. P 10,676

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MERCY HOSPITALS OF SACRAMENTO, INC., Respondent.

No. 76-3579.

United States Court of Appeals, Ninth Circuit.

June 12, 1978.

As Amended July 3, 1978.

Rehearing Denied Aug. 25, 1978.

Certiorari Denied Feb. 21, 1979.

See 99 S.Ct. 1221.

Paul J. Spielberg (argued), Washington, D. C., for petitioner.

Michael B. Roger (argued), of Van Bourg, Allen, Weinberg, Williams & Roger, San Francisco, Cal., for respondent.

Application for Enforcement of an Order of the National Labor Relations Board.

Before SNEED and TANG, Circuit Judges, and ORRICK ^*, District Judge.

TANG, Circuit Judge:

The National Labor Relations Board (Board) seeks enforcement of its order, published at 224 N.L.R.B. 419, ordering Mercy Hospitals of Sacramento, Inc. (Mercy) to bargain collectively on request with Local 250, Hospital and Institutional Workers Union, SEIU, AFL-CIO (Union), to cease and desist from interfering with its employees in the exercise of their statutory rights, and to post notices. This court has jurisdiction pursuant to § 10(e) of the National Labor Relations Act (the Act), 29 U.S.C. § 151 et seq.

I.

On August 26, 1974, the Act was amended to cover persons employed at health care institutions, including non-profit hospitals Pub.L. 93-360, 88 Stat. 395 (1974). On that same day, the Union filed with the Board four petitions for representation elections, seeking certification as the bargaining representative for two separate employee units at each of Mercy's two locations. Representation hearings were held to determine the appropriate bargaining units. Three other labor organizations intervened in those hearings.

The parties stipulated to a service-and-maintenance unit and an all-clerical unit and to the classifications of employees in each of these units. The parties disagreed as to whether there should be separate units at each geographical location or an employer-wide set of units. After the hearings, the Regional Director issued a decision and direction of elections on December 10, 1974, finding that the proper geographical scope was employer-wide, and accepting the stipulation as to the composition of the units. The Union filed a request for review.

The Union and one of the intervenors, Local 39, International Union of Operating Engineers, AFL-CIO (Local 39), then requested that they be allowed to appear on the ballot as joint petitioner and offered to withdraw the request for review of the unit determination if the joint petitioner request were granted. Mercy opposed the request for joint petitioner as improper and untimely.

The Board scheduled argument in this and five other related cases for January 27, 1975. The notice of hearing ¹ stated that the Board was interested in hearing argument on appropriate units in the health industry, especially the appropriate units for clerical personnel. After hearing argument, the Board granted the Union's request for review, and stayed the election pending its decision.

On May 5, 1975, the Board issued its decision and rejected the all-clerical unit the parties had stipulated to. The Board was of the opinion that business office clericals should be in a bargaining unit separate from other clerical employees. The request of the Union and Local 39 to appear as joint petitioners was granted. The Union then withdrew its petition for election in the business office clerical unit.

On June 4, 1975, a representation election was held in the service-and-maintenance unit, which the Union won, 359 to 332 with six challenged ballots. Mercy filed objections, claiming that the Union had made misrepresentations which influenced the election, and that the Board had improperly granted the request of the Union and Local 39 to appear as joint petitioner. The Regional Director overruled the objections and certified the election results. Mercy requested Board review, which was denied October 23, 1975.

On October 28, 1975, the Union requested that Mercy bargain. Mercy refused. On December 10, 1975, the General Counsel issued a complaint, charging that Mercy's refusal to bargain violated § 8(a)(1) and (5) of the Act, 29 U.S.C. § 158(a)(1) and (5). Mercy admitted its refusal to bargain but claimed that the Board's certification of the bargaining units was invalid because the unit stipulation had been rejected and because of the Union's pre-election conduct (the same conduct which had been challenged in the representation proceeding).

The Board issued its decision, published at 224 N.L.R.B. 419, on June 7, 1976. The Board found that all issues raised by Mercy were or could have been litigated in the underlying representation proceeding and that Mercy was in violation of the Act. The Board ordered Mercy to bargain with the Union on request, to cease and desist from interfering with the employees § 7 rights, and to post notices. The General Counsel has brought the present action for enforcement.

II.

There are two basic issues presented by this case: whether the Board's certification of the bargaining units was invalid because of the manner in which the Board dealt with the stipulation, and if not, whether the Board erred in refusing to overturn the election because of the Union's conduct.

A.

It is well-settled that the Board has a large measure of discretion in determining appropriate bargaining units. Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947); Pittsburgh Plate Glass Co. v. N. L. R. B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); Atlas Hotels, Inc. v. N. L. R. B., 519 F.2d 1330 (9th Cir. 1975). The Board is not required to choose the most appropriate unit, only to choose a unit within the range of appropriate units, Atlas Hotels, supra; N. L. R. B. v. Lerner Stores Corp., 506 F.2d 706 (9th Cir. 1974). The Board's decision in these matters will not be overturned unless there is an abuse of discretion, the Board acted in an arbitrary, unreasonable, or capricious fashion, or the unit is in violation of statute. Packard Motor Car Co., supra; Atlas Hotels, supra; Lerner Stores, supra; Libbey-Owens-Ford Co. v. N. L. R. B., 495 F.2d 1195 (3rd Cir. 1974) Cert. denied, 419 U.S. 998, 95 S.Ct. 313, 42 L.Ed.2d 272; N. L. R. B. v. Wolverine World Wide Inc., 477 F.2d 969 (6th Cir. 1973).

However, when the parties stipulate to a bargaining unit, the Board's powers are circumscribed. The Board is bound by the stipulation unless the stipulation violates applicable statutes or settled Board policy. N. L. R. B. v. Detective Intelligence Service Inc., 448 F.2d 1022 (9th Cir. 1971); N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir. 1967); Tidewater Oil Co. v. N. L. R. B., 358 F.2d 363 (2nd Cir. 1966). In those cases where the stipulation is ambiguous, the Board may interpret the stipulation, but the interpretation must be based on the intent of the parties. Detective Intelligence Service Inc., supra; Tennessee Packers, Inc., supra. The Board itself acknowledges that such stipulations are to be honored provided that they are approved by the Regional Director and they do not violate express statutory provisions or established Board policies. The Tribune Co., 190 N.L.R.B. 398 (1971).

The Board contends that the practice of honoring stipulations is inapplicable in the circumstances presented here. First, the Board claims that when this case was decided the Board had not yet determined whether stipulations in the health care field would be given the same weight as stipulations in other areas. Second, the Board argues that even if stipulations in the health care field would be honored if they met the Tribune Co. standards, it was impossible for this stipulation to meet those standards because the Board had not yet formulated its policy on bargaining unit determinations. Finally, the Board appears to claim that acceptance of this stipulation would lead to an undue proliferation of bargaining units.

We find these arguments unpersuasive. We fail to see why the policy of accepting stipulations that meet the conditions set forth in the Tribune Co. should not apply to areas newly added to the Board's jurisdiction. The Board might decide to change the policy of accepting stipulations, or it might decide that the policy should not apply in the health care field. But either of these decisions would be a departure from the Board's conclusions in previous cases, and the Board is therefore obliged to set forth its reasoning in favor of the change in order to avoid the appearance of arbitrariness, N. L. R. B. v. Metropolitan Life Ins. Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965). The Board has not done so, and we note that in a case subsequent to this one the Board has stated that it will accept such stipulations in the health care field, Otis Hospital Inc., 219 N.L.R.B. 164 (1975).

The Board's second argument, that a stipulation could not meet the Tribune Co. standards until the Board had formulated its policy, is more troublesome. At first glance it would seem that it could not be determined if a stipulation violated Board policy until Board policy had...