Ochsner Clinic v. NLRB
| Decision Date | 06 February 1973 |
| Docket Number | No. 72-1703.,72-1703. |
| Citation | 474 F.2d 206 |
| Parties | OCHSNER CLINIC, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Andrew P. Carter, David E. Walker, New Orleans, La., for petitioner-cross respondent.
Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Charles M. Paschal, Jr., Regional Director, New Orleans, La., William R. Stewart, N.L.R.B., Washington, D. C., for respondent-cross petitioner.
Before JOHN R. BROWN, Chief Judge, and MOORE* and RONEY, Circuit Judges.
Ochsner Clinic challenges the order of the National Labor Relations Board certifying the Union1 as the bargaining representative of its 22 X-ray technicians on the grounds that (i) the activities of the clinic are not within the coverage of the Act and (ii) even if these activities were covered, the Board failed to choose the appropriate bargaining unit. Finding these contentions to be substantially without merit, we grant the Board's petition for enforcement.
The Clinic asserts that the Board has departed from all prior practice in assuming jurisdiction over the employer-employee relations within a medical clinic. This is incorrect. It is true, as Ochsner asserts, that prior to the case of Mayo Clinic, 168 NLRB 557 (1967), the Board had declined to take jurisdiction over voluntary associations of physicians. Nevertheless, in that case, and in the subsequent case of Quain and Ramstad Clinic, 173 NLRB 1185 (1968), the Board did assume jurisdiction where the employer was not primarily engaged in education and research or operating a non-profit hospital and did have an impact upon interstate commerce.2
Those criteria are met here. Ochsner is not engaged primarily in education and research so as to come within the purview of the congressional purpose in exempting non-profit hospitals from the Labor Management Relations Act.3 But Ochsner does have a substantial impact upon interstate commerce. Not only was it expressly stipulated by the parties that Ochsner did a gross volume during the preceding six months in excess of $250,000 and purchased materials and supplies in excess of $50,000 during the period, but the record indicates that the partnership of some 200 physicians employs over 500 nurses, technicians, clerks, and other medical assistants.
Ochsner asserts that Mayo Clinic is not valid authority for the Board's asserting jurisdiction — ties to interstate commerce notwithstanding — because there both parties petitioned the Board to assert its jurisdiction. Clearly, this is irrelevant — the Board's decision whether to assert power over the parties is one of administrative discretion. NLRB v. Marinor Inns, Inc., 5 Cir., 1971, 445 F.2d 538, 541; NLRB v. WGOK, Inc., 5 Cir., 1967, 384 F.2d 500. Indeed, the congressional purpose to allow the Board to decline jurisdiction in an appropriate case is embodied in the statute.4 Thus, any prior instance where the Board declined to assert jurisdiction — Ochsner cites no cases of such abstention — would not preclude the power here.5
The contention that the Board failed to choose the most appropriate unit is without merit. It is so well established6 that the Board has wide authority under Section 9(b) to determine the proper bargaining unit, we need only state a few of the facts which indicate the Board made an appropriate choice in this case. At Ochsner Clinic, there are approximately 150 skilled technicians whose fields range from audiology to urology, and perhaps two dozen other areas in between.7 The radiological technologists (or X-ray technicians), 22 in number, form a separate department from other technicians. They are supervised independently of other clinic employees. They are subject to hire and discharge by the Chief Radiological Technologist, not the Personnel Department. Their salaries are established independently of other departments in the Clinic. Each technician must be registered by the American Registry of Radiological Technologists, a process which usually requires about two years of specialized training. Also, the X-ray technicians generally work in a separate area of the clinic, and have only limited interaction with other departments. Clearly, there were enough factors present here to sufficiently distinguish the X-ray technicians from other departments as a separate unit, appropriate for bargaining purposes. The unit chosen need not be the most appropriate, but only one which is appropriate under the circumstances. NLRB v. Li'l General Stores, Inc., 5 Cir., 1970, 422 F.2d 571, 573; NLRB v. Zayre Corp., 5 Cir., 1970, 424 F.2d 1159, 1165.
Finally, there is no indication here that there is any other...
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