Trustees of Masonic Hall and Asylum Fund v. N.L.R.B., AFL-CI

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and TENNEY; OAKES
• Citation: 699 F.2d 626
• Parties: 112 L.R.R.M. (BNA) 2908, 96 Lab.Cas. P 14,082 The TRUSTEES OF the MASONIC HALL AND ASYLUM FUND, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Service Employees International Union, Local 200,ntervenor. ockets 82-4116, 82-4134.
• Decision Date: 14 February 1983
• Docket Number: I,AFL-CI,D,Nos. 299,574

Page 626

699 F.2d 626 112 L.R.R.M. (BNA) 2908, 96 Lab.Cas. P 14,082 The TRUSTEES OF the MASONIC HALL AND ASYLUM FUND, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent,
and
Service Employees International Union, Local 200, AFL-CIO, Intervenor. Nos. 299, 574, Dockets 82-4116, 82-4134. United States Court of Appeals,
Second Circuit. Argued Nov. 19, 1982.
Decided Feb. 14, 1983.

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Frank C. Morris, Jr., New York City (Richard G. Vernon, Richard J. Reibstein, Epstein, Becker, Borsody & Green, P.C., New York City, William W. Kelly, Penberthy, Kelly & Walthall, Utica, N.Y., of counsel), for petitioner.

David S. Fishback, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, of counsel; Andrew F. Tranovich, N.L.R.B., Washington, D.C., on the brief), for respondent.

Ira A. Sturm, Israelson, Manning & Raab, New York City, for intervenor-respondent.

Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and TENNEY, District Judge. ^*

OAKES, Circuit Judge:

Once again a court of appeals is faced with a National Labor Relations Board health care institution unit determination. The issue posed is whether the Board, acting in an area in which it generally has broad discretion, has given due heed, first, to preventing proliferation of bargaining units in the health care industry, the congressional concern expressed in the legislative history of the 1974 Health Care Amendments to the National Labor Relations Act; and, second, to the admonitions of this and other circuits to balance traditional community of interest factors against the public interest in continuity of health care. While the Board has run into difficulty in this court and other courts of appeals by virtue of its seeming reluctance to give proper weight to the factor of "undue proliferation," ¹ we believe that the Board acted properly in this instance. Accordingly, we deny the petition to set aside the Board's decision and grant the cross-application for enforcement of an order requiring

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the employer to bargain with the union certified pursuant to a Board-supervised election.

I.

The Masonic Hall and Asylum Fund is a fraternal nonprofit organization whose trustees engage in the operation of facilities known collectively as the Masonic Home: a licensed skilled nursing facility, a licensed health related nursing facility, and a licensed domiciliary or adult care facility, all at Utica, New York. The Trustees also operate a recreational facility forty miles from Utica. The skilled nursing facility has approximately 105 "guests" or patients, the health related facility 137, and the adult care facility also 137. The Trustees employ some 535 individuals, 475 of whom are nonsupervisory.

On June 21, 1981, the Service Employees International Union, Local 200, AFL-CIO (the Union) filed a petition with the National Labor Relations Board (the Board) to represent a unit of the Trustees' service and maintenance employees at these facilities. The Acting Regional Director directed an election after a hearing to determine the proper scope and composition of the bargaining unit. At the hearing, the Union amended its petition, which had specifically excluded technical employees, professional employees, business office clerical employees, confidential employees, guards, and supervisors, to exclude also the three full-time employees at the recreational facility. The Union sought to represent only service and maintenance workers, and would not represent a broader unit including technical, professional, or business office clerical workers.

The Trustees' position at the hearing was that only a "wall-to-wall" unit would be appropriate for purposes of collective bargaining in its health care facilities. While the employer and the union were in basic agreement as to some 370 employees in the service and maintenance unit, ² the employer's position was that the unit should also include professional employees, ³ technical employees, ⁴ and business office clerical employees, ⁵ stipulating, however, that confidential

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employees, ⁶ supervisors, ⁷ seasonal employees, and guards ⁸ should be excluded. In its post-hearing brief, the employer took the position that the professional employees must be given the option to be included with nonprofessional employees in the bargaining unit, as provided for in Section 9(b)(1) of the National Labor Relations Act (NLRA), 29 U.S.C. Sec. 159(b)(1). On appeal, the Trustees argue that, in any event, the unit as determined was insufficiently inclusive. ⁹

The Board concluded, however, that a service and maintenance unit was appropriate. The Board examined all employee classifications in terms of duties and functions, licensing and education requirements, record of transfer between classifications, pay grades, scheduling, and uniform requirements. In light of that analysis, "as well as the fact that a unit of service and maintenance employees has historically been found to be appropriate by the Board in health care institutions," the Acting Regional Director concluded that the certified unit of

[a]ll full-time and regular part-time service and maintenance employees employed by the Employer at its Utica, New York facility, excluding all technical employees, business office clerical employees, confidential employees, professional employees, guards, and supervisors as defined in the Act and all other employees

"cannot be said to constitute the sort of undue proliferation of bargaining units which Congress directed the Board to prevent." Decision and Direction of Election, Case 3-RC-8112 at 1, 6 (NLRB July 28, 1981). In all, the certified unit included 400 of the Masonic Home's 475 nonsupervisory employees. ¹⁰

The Board denied the Trustees' request for review of the Regional Director's unit determination. The service and maintenance employees voted 188 to 125, with 8 challenged ballots, to be represented for collective bargaining purposes by the Service Employees International Union, Local 200, and the Board certified the election results on September 15, 1981. The Trustees, however, refused to bargain with the Union concerning rates of pay, wages, hours and other terms and conditions of employment of the workers in the unit, or to provide information requested by the Union. The Union therefore filed an unfair labor practice charge on October 5. The Board's General Counsel issued a complaint and later moved for summary judgment

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that the Trustees had violated NLRA Sec. 8(a)(5), 29 U.S.C. Sec. 158(a)(5), by refusing to bargain with the Board-certified representative. A three-member panel of the Board (Fanning, Jenkins, Zimmerman) granted the motion. 261 NLRB No. 49 (Apr. 29, 1982). Pursuant to NLRA Sec. 10(c), 29 U.S.C. Sec. 160(c), the Board ordered the Trustees to cease and desist from refusing to bargain collectively with the Union, and refusing to furnish the Union with requested information concerning the present terms and conditions of employees in the bargaining unit, as well as affirmatively to bargain and to post notices. The Trustees petition for review of this decision.

II.

Before addressing the issues raised by the parties, we believe a discussion of the legislative context will be helpful.

A. Congress. The first step toward collective labor action under the NLRA is, of course, a petition to the Board seeking certification of an appropriate unit of employees who will then choose their bargaining representative in a Board-supervised election. The National Labor Relations Act sets out few standards to guide the Board's determination of an appropriate bargaining unit in the health care or any other industry. Section 9(b) enjoins the Board "to assure to employees the fullest freedom in exercising the rights guaranteed by [the NLRA]." 29 U.S.C. Sec. 159(b). The familiar section 7 rights include the right "to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing ... [or] to refrain from any or all of such activities." 29 U.S.C. Sec. 157. Section 9(b) provides further standards for Board determination of units of professional employees, craftsmen, and guards. 29 U.S.C. Sec. 159(b). Congress delegated the duty to the Board to determine whether "the employer unit, craft unit, plant unit, or subdivision thereof" is the appropriate unit for collective bargaining purposes. Id. Prior organizing of the employees "shall not be controlling" in the Board's determination of the appropriate unit. NLRA Sec. 9(c)(5), 29 U.S.C. Sec. 159(c)(5).

Not until 1974 were employees in nonprofit health care institutions ¹¹ able to organize within the protective structure of the NLRA. As the Supreme Court has noted, passage of the 1974 Health Care Amendments to the National Labor Relations Act

reflected Congress' judgment that hospital care would be improved by extending the protection of the Act to nonprofit health-care employees. Congress found that wages were low and working conditions poor in the health-care industry, and that as a result, employee morale was low and employment turnover high. Congress determined that the extension of organizational and collective-bargaining rights would ameliorate these conditions and elevate the standard of patient care. Congress also found that "the exemption [of nonprofit health care institutions] had resulted in numerous instances of recognition strikes and picketing. Coverage under the Act should completely eliminate the need for such activity, since the procedures of the Act will be available to resolve organizational and recognition disputes." S.Rep. No. 93-766, p. 3 (1974).

Beth Israel Hospital v. NLRB, 437 U.S. 483, 497-98, 98 S.Ct. 2463, 2471, 57 L.Ed.2d 370 (1978) (footnotes omitted).

At the same time, Congress enacted special provisions to protect the public interest in...