N.L.R.B. v. Children's Hosp. of Michigan

• Decision Date: 08 October 1993
• Docket Number: Nos. 92-5068,92-5069 and 92-5304,s. 92-5068
• Citation: 6 F.3d 1147
• Parties: 144 L.R.R.M. (BNA) 2409, 126 Lab.Cas. P 10,887 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHILDREN'S HOSPITAL OF MICHIGAN; Henry Ford Health System; and Mount Clemens General Hospital, Respondents.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1147

6 F.3d 1147

144 L.R.R.M. (BNA) 2409, 126 Lab.Cas. P 10,887

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CHILDREN'S HOSPITAL OF MICHIGAN; Henry Ford Health System and Mount Clemens General Hospital, Respondents.

Nos. 92-5068, 92-5069 and 92-5304.

United States Court of Appeals Sixth Circuit.

Argued March 2, 1993.

Decided Oct. 8, 1993.

Aileen A. Armstrong, Dep. Asso. Gen. Counsel, Peter Winkler (briefed), Fred L. Cornnell, Jr. (argued), N.L.R.B., Office of the Gen. Counsel, Washington, DC, Bernard Gottfried, Regional Director, N.L.R.B., Region Seven, Detroit, MI, for N.L.R.B.

Brian S. Ahearn (briefed), Conrad W. Kreger (argued and briefed), Stringari, Fritz, Kreger, Ahearn, Bennett & Hunsinger, Detroit, MI, for Children's Hosp. of Michigan and Mount Clemens General Hosp.

Linda M. Foster (briefed), Keller, Thoma, Schwarze, Schwarze, Dubay & Katz, Detroit, MI, Stewart J. Katz (argued), Bloomfield Hills, MI, for Henry Ford Health System.

Before: KEITH and BATCHELDER, Circuit Judges; and CHURCHILL, Senior District Judge. ^*

BATCHELDER, Circuit Judge.

This case involves the appeal by three hospitals from an application for enforcement of several National Labor Relations Board (NLRB or the Board) orders requiring the hospitals to bargain collectively with a union certified as the representative of the guards at these hospitals. The hospitals argue that they need not bargain with the union because the certification of this union violates section 9(b)(3) of the National Labor Relations Act (NLRA) in that the union represents non-guard members in other units in the public and private sector. We affirm the NLRB's order in part, but remand the cases to the NLRB to consider the new evidence offered by the hospitals concerning the union's membership and to reconsider the certification of the union in light of this new evidence.

I.

Henry Ford Hospital (HFH), Children's Hospital of Michigan and Mount Clemens General Hospital provide medical care to patients at different locations in the Detroit area. The Michigan Association of Police (MAP) is a labor organization that represents 13 bargaining units in the public and private sectors. On March 29, 1990, MAP filed a petition with the NLRB to be certified as the collective bargaining representative of a unit of guards employed by Children's Hospital. On May 30, 1990, MAP again petitioned the Board for certification as the representative of a unit of security officers employed at HFH. On February 22, 1991, MAP filed a petition seeking certification of the guards at Mount Clemens General. Representation hearings were held on each of these petitions for certification. The hospitals opposed the certification, alleging that MAP was disqualified under section 9(b)(3) of the NLRA because it admits to membership, and is affiliated with an organization that admits to membership, "employees other than guards" in both the public and private sectors. MAP does in fact admit to membership and does represent non-guards in the public sector. In addition, MAP represents a bargaining unit at Detroit Receiving Hospital/Detroit Medical Center (DMC), a private health care facility, that was certified to include "parking officers" and dispatchers, although in fact there are no "parking officers" at DMC, only valet drivers and parking attendants. MAP also is affiliated with the Michigan Association of Public Employees (MAPE), an organization that admits to membership and represents non-guards in the public sector.

On May 10, 1990, the Regional Director of the NLRB issued a decision and direction of election as to Children's Hospital, rejecting the argument that MAP was disqualified from seeking certification. On July 13, 1990, the NLRB's Regional Director issued a similar decision and direction of election as to HFH, and on March 19, 1991, he issued a decision and direction of election as to Mount Clemens Hospital. The hospitals filed requests for review with the Board. The Board granted Children's Hospital's request and affirmed the Regional Director. The Board denied HFH's and Mount Clemens Hospital's requests. After elections, the Regional Director on August 23, 1990, certified MAP as the collective-bargaining representative of the Children's Hospital guards; it did the same for the guards at HFH on August 24, 1990, and for the guards at Mount Clemens Hospital on April 25, 1991.

The hospitals have declined to recognize or bargain with MAP in order to secure judicial review of the Board's certification decision. MAP filed an unfair labor practice charge against the hospitals, alleging that they were refusing to bargain in good faith in violation of sections 8(a)(1) and 8(a)(5) of the NLRA. The Regional Director issued a complaint and notice of hearing.

On March 28, 1991, the Board issued a decision and order against Children's Hospital, finding that the hospital was engaging in unfair labor practices by refusing to bargain with MAP. It issued similar orders against HFH on June 10, 1991, and against Mount Clemens Hospital on December 31, 1991. The Board now asks this Court to enforce its orders. We have consolidated these cases involving the three hospitals for appeal.

After the appeal was filed, the hospitals filed a motion with this Court for consideration of newly discovered evidence or, in the alternative, for remand to the NLRB for consideration of it. This new evidence included that on January 25, 1993, the NLRB--in response to MAP's unit clarification motion requesting that parking officers and dispatchers be deleted from the DMC unit--held that parking officers (but not dispatchers) were non-guards and therefore not part of the DMC unit. The new evidence also included the testimony from a MAP official in another NLRB proceeding involving another hospital that was challenging certification of MAP on the grounds that its representation of non-guards violated section 9(b)(3). The MAP official testified that as soon as the NLRB certifies a unit and MAP wins an election, MAP represents the unit members, including the DMC unit members.

II.

We affirm the NLRB's determination that MAP was not disqualified as the representative for the hospitals' guard units because of its representation of non-guards in the public sector. However, we remand to the NLRB to reconsider its determination that MAP was not disqualified because it represented non-guards in the private sector, in light of the new evidence offered by the hospitals.

A. Background

Section 9(b)(3) of the NLRA states in pertinent part:

(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not....

(3) 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. Sec. 159(b)(3) [section 9(b)(3) ]. The statutory provision was enacted in response to the Supreme Court's decision in NLRB v. Jones & Laughlin Steel Corp., 331 U.S. 416, 423, 67 S.Ct. 1274, 1279, 91 L.Ed. 1575 (1947), which held that the Board could order an employer to bargain with a union certified to represent a unit of plant guards, although the union also admitted non-guard employees. Section 9(b)(3) thus reversed Jones & Laughlin by prohibiting the Board from ordering an employer to bargain with a union intending to represent its guards when that union also represents non-guards in other units. Section 9(b)(3) is designed to

avoid[ ] the potential of divided loyalty in any employee who is vested with the authority to enforce rules and regulations for the protection of company property. The consistent goal has been to "insure an employer that he would have a core of plant protection employees, during a period of industrial unrest and strikes."

McDonnell Aircraft Co. v. NLRB, 827 F.2d 324, 326 (8th Cir.1987) (quoting Lion Country Safari and Hosp. & Serv. Employees Union, Local 339, 225 N.L.R.B. 969, 970, 1976 WL 7322 (1976)). Thus, Congress enacted section 9(b)(3) to alleviate " 'not merely divided loyalties at a company plant, but the potential for divided loyalty that arises whenever a guard is called to enforce the rules of his employer against any fellow union member.' " NLRB v. Brinks, Inc. of Florida, 843 F.2d 448, 453 (11th Cir.1988) (quoting Truck Drivers Local Union No. 807, 755 F.2d 5, 9 (2d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 225 (1985)).

Although an employer may voluntarily recognize a guard/non-guard union as the bargaining agent for a unit, the NLRB cannot compel an employer to recognize such a union. Truck Drivers Local Union No. 807 v. NLRB, 755 F.2d 5, 8 (2d Cir.), cert. denied, 474 U.S. 901, 106 S.Ct. 225, 88 L.Ed.2d 225 (1985). And, although guard employees may join a union that represents non-guards without having their membership be unlawful, these employees will not have all the rights normally associated with belonging to a union. NLRB v. White Superior Div., White Motor Corp., 404 F.2d 1100, 1103-04 (6th Cir.1968).

Thus, the hospitals argue that MAP could not be certified as the representative of their guard units because it admits to membership, and is associated with MAPE who admits to membership, "employees other than guards." They make two arguments: First, MAP stipulated that it admits non-guards in the public sector and thus...