St. John's General Hosp. of Allegheny ADR Center v. N.L.R.B.
| Decision Date | 31 July 1987 |
| Docket Number | No. 86-3628,Nos. 86-3628,ALLEGHENY--ADR,No. 86-3696,86-3696,86-3628,s. 86-3628 |
| Citation | 825 F.2d 740 |
| Parties | 125 L.R.R.M. (BNA) 3463, 107 Lab.Cas. P 10,062 ST. JOHN'S GENERAL HOSPITAL OFCENTER (and its successor St. John's Health and Hospital Center, Inc.--Brighton Woods Treatment Center), Petitioner in, v. NATIONAL LABOR RELATIONS BOARD Amalgamated Food Employees Local 590, United Food and Commercial Workers International Union, Intervenor. ST. JOHN'S GENERAL HOSPITAL OFCENTER (and its successor St. John's Health and Hospital Center, Inc.--Brighton Woods Treatment Center) v. NATIONAL LABOR RELATIONS BOARD, Petitioner in |
| Court | U.S. Court of Appeals — Third Circuit |
Henry Woodruff Turner (argued), Kirkpatrick and Lockhart, Pittsburgh, Pa., for petitioner in No. 86-3628.
Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliot Moore, Deputy Associate Gen. Counsel, W. Christian Schumann, Charles Donnelly (argued), N.L.R.B., Washington, D.C., for N.L.R.B.
James R. Reehl, Pittsburgh, Pa., David M. Silberman, Laurance Gold, George Murphy, United Food and Commercial Workers Intern. Union, Washington, D.C., for intervenor.
Before SEITZ and MANSMANN, Circuit Judges, and BISSELL, District Judge. *
The employer, St. John's General Hospital of Allegheny County-ADR Center (the Center), petitions this court for review of the order of the National Labor Relations Board (the NLRB or Board) finding that the Center had engaged in unfair labor practices by refusing to bargain with the union in violation of sections 8(a)(1) and (5) of the National Labor Relations Act (the NLRA or the Act). 29 U.S.C. Sec. 158(a)(1), (5) (1982). The Board cross-petitions for enforcement of its order. This court has jurisdiction pursuant to 29 U.S.C. Sec. 160(e), (f) (1982).
The Center provides detoxification, rehabilitation, and outpatient treatment services for alcoholics and drug addicts. In December 1980 the Union 1 filed a petition with the Board's Regional Director seeking to represent a bargaining unit composed of all professional employees, excluding doctors, and all nonprofessional employees, except the clerical staff, employed at the Center.
The Regional Director held a hearing on the petition in early 1981. The hearing centered on two issues: whether the Center's counselors should be classified as professional employees, and whether the eight clerical employees should be included in the bargaining unit.
The Regional Director found that the counselors were properly classified as nonprofessional employees and thus were within the bargaining unit. He then turned to the Center's contention that the eight clerical employees should be in the bargaining unit. The Regional Director concluded that the two data coordinators and the medical records clerk should be placed in the unit. He, however, determined that the other five clerical employees--three admissions clerks, the switchboard operator, and the billing clerk--should be excluded from the unit because they were business office clericals. The Regional Director thus ordered that an election be held, with the eight professional employees, all registered nurses, first voting separately on whether they wanted to be included in a bargaining unit with nonprofessional employees.
The Center filed a Request for Review with the Board, challenging the Regional Director's determinations as to the counselors and the clerical employees. The day before the election the Board, by telegraphic order, denied the Center's request for review. The Board, however, stated that the exclusion of the three admissions clerks raised a substantial question, and directed that these clerks be permitted to vote subject to challenge.
The professional employees voted five to three for inclusion in the unit with nonprofessionals. The voting in the overall unit resulted in 55 votes for the Union and 19 opposed to it, with four votes challenged (including the three admissions clerks).
The Center filed an objection to the election, contending that the election eve enfranchisement of the admissions clerks introduced impermissible confusion into the election process. The Regional Director overruled the Center's objection on the ground that it failed to raise a substantial or material issue of fact affecting the validity of the election. He thus certified the Union as the collective bargaining representative of the unit. 2 The Board denied the Center's request for review of the Regional Director's decision.
The Center refused to bargain with the Union. The Union filed an unfair labor practice charge against the Center, and the General Counsel filed a complaint and motion for summary judgment against the Center in June.
The unit employees thereafter voted to strike to protest the Center's refusal to bargain. The strike lasted from August 1981 to May 1982. During the strike the Center instituted a number of changes in the working conditions of the unit employees. The General Counsel then filed additional complaints against the Center, alleging that the Center committed unfair labor practices by instituting unilateral changes in the conditions of employment during the strike.
In a hearing before an administrative law judge (the ALJ), the Center argued that its actions were justified because the scope of the bargaining unit was inappropriate and because the Union had engaged in strike misconduct. The ALJ refused to address the scope of the bargaining unit issue because it had already been decided by the Board. The ALJ also rejected the Center's strike misconduct defense. The ALJ thus recommended that the Board find that the Center had engaged in unfair labor practices by refusing to bargain with the union and by instituting unilateral changes in the conditions of employment.
The Board adopted the findings of the ALJ. To remedy the violations, the Board issued a cease and desist order against the Center. In addition, the Board directed the Center, on the request of the union, to rescind certain of the unilateral changes in the conditions of employment and to restore the pre-strike conditions.
The Center raises two challenges to the certification of the bargaining unit in its petition. First, it contends that the scope of the bargaining unit is inappropriate because it excludes some of the clerical employees. Second, the Center argues that the Board erred in classifying the outpatient and recreational counselors as nonprofessionals. Because of these two alleged errors, the Center asserts that a new election is required. 3
Congress amended the NLRA in 1974 to extend coverage of the Act to employees of nonprofit hospitals. Congress recognized, however, that extending the NLRA to the health care industry presented special problems in terms of the potential for disruptions of service. See S.Conf.Rep. No. 93-766, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Ad.News 3946, 3948 (the Conference Report); St. Vincent's Hospital v. NLRB, 567 F.2d 588, 590 (3d Cir.1977). Thus, the House and Senate Reports contained identical language admonishing that "[d]ue consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry." Conference Report at 3950; S.Rept. No. 93-766, 93d Cong., 2d Sess. 5 (1974); H.Rep. No. 93-1051, 93d Cong., 2d Sess. 7 (1974).
As a general rule, the Board has great discretion in determining the scope of a bargaining unit, and the "decision of the Board, if not final, is rarely to be disturbed." Packard Motor Car Co. v. NLRB, 330 U.S. 485, 491, 67 S.Ct. 789, 793, 91 L.Ed. 1040 (1947). We review the Board's determination of the scope of a bargaining unit "to insure that the exercise of the agency's discretion is not unreasonable, arbitrary, or in conflict with congressional intent." St. Vincent's Hospital, supra, 567 F.2d at 590.
In the field of health care, every court of appeals but the Court of Appeals for the District of Columbia that has addressed this issue has concluded that the Board must consider the issue of undue proliferation in determining the scope of a bargaining unit. 4 In particular, this court has concluded that Congress instructed the Board to employ a different standard in the health care industry from that generally employed in defining the scope of a bargaining unit. See Allegheny General Hospital v. NLRB, 608 F.2d 965, 968-69 (3d Cir.1979); St. Vincent's Hospital, supra, 567 F.2d at 592. Accordingly, when the Board considers the scope of a bargaining unit,
the factors of amount of contact between workers, separate immediate supervision and special skills of [the employees] must be put in balance against the public interest in preventing fragmentation in the health care field. A mechanical reliance on traditional patterns ... does not comply with congressional intent to treat this unique field in a special manner.
St. Vincent's Hospital, supra, 567 F.2d at 592. 5
The Center argues that the Board abused its discretion in this case because it failed to consider the proliferation issue in defining the scope of the bargaining unit. We disagree. After considering the interests of the clerical employees, the Regional Director explicitly referred to the problem of undue proliferation in his decision. Moreover, although the Regional Director did not expressly articulate his reasons for concluding that this concern was not implicated in this case, he cited a number of cases in which the Board has articulated its reasons for excluding business office clericals from units of other nonprofessional hospital employees. We conclude that the reference to other Board decisions is sufficient in this case to demonstrate that he gave "due consideration" to the public interest in avoiding undue proliferation. See Walker Cty. Medical Center, supra, 722 F.2d at 1539; Watonwan...
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