Vicksburg Hosp., Inc. v. N.L.R.B.

• Decision Date: 21 August 1981
• Docket Number: No. 80-3676,80-3676
• Citation: 653 F.2d 1070
• Parties: 108 L.R.R.M. (BNA) 2074, 92 Lab.Cas. P 12,962 VICKSBURG HOSPITAL, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1070

653 F.2d 1070

108 L.R.R.M. (BNA) 2074, 92 Lab.Cas. P 12,962

VICKSBURG HOSPITAL, INC., Petitioner Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent Cross-Petitioner.

No. 80-3676.

United States Court of Appeals, Fifth Circuit.

Unit A

Aug. 21, 1981.

Louis A. Fuselier, Frank M. Holbrook, Jackson, Miss., for petitioner cross-respondent.

Elliott Moore, Deputy Assoc. Gen. Counsel, Susan L. Dolin, NLRB, Washington, D.C., for respondent cross-petitioner.

Charles M. Paschal, Jr., Reg. Director, New Orleans, La., for other interested parties.

Petition for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board.

Before REAVLEY, RANDALL and SAM D. JOHNSON, Circuit Judges.

REAVLEY, Circuit Judge:

Vicksburg Hospital, Inc. has petitioned this court for review of an order of the National Labor Relations Board finding it guilty of unfair labor practices in refusing to bargain with the union certified by the Board to represent its employees. The Board has cross applied for enforcement of its order. We grant the request for enforcement.

I. The Background Facts

Petitioner is a non-profit hospital engaged in the delivery of health care services in Vicksburg, Mississippi. On September 10, 1979, Local Union 1964 of the United States Brotherhood of Carpenters & Joiners of America, AFL-CIO petitioned the Board for certification as the exclusive bargaining agent for a unit composed of Vicksburg Hospital's nonprofessional service, maintenance, and technical employees, excluding business office clerical employees, supervisors and professional employees. ¹ The hospital took the position that the proposed unit of all service, maintenance and technical employees was overbroad and urged that four separate units consisting of service and maintenance employees, technical employees, business office and clerical employees, and professional employees would be appropriate. After a hearing, the regional director issued a decision and direction of election, finding that the unit of service, maintenance and technical employees was appropriate for collective bargaining. The hospital filed a timely request for review of the regional director's decision, which was denied by the Board. An election was subsequently conducted among the employees in the unit. From the 230 employees who were eligible to vote, 148 votes were cast in favor of the union, and 66 votes were cast against it. Fifteen ballots were challenged, which was an insufficient number to affect the election.

Vicksburg Hospital filed objections to the election, contending that the union offered economic inducements to employees who supported it by waiving initiation fees, that it misrepresented to employees various conditions of employment and their rights in the event of strikes, and that it misrepresented the Government's role in the election by leading employees to believe that the Board supported the union in the election. Thereafter, the regional director issued a supplemental decision and certification of representation in which he overruled the objections to the election, denied the hospital's request for an evidentiary hearing, and certified the union as the exclusive bargaining representative for the employees in the unit. The hospital applied to the Board for review of the regional director's supplemental decision and for reconsideration of the previous ruling on the appropriateness of the unit. The Board denied the application for review on April 2, 1980.

The hospital refused to bargain with the union in order to challenge its certification as bargaining representative on the grounds that the bargaining unit of service, maintenance and technical employees was inappropriate and that conduct by the union had destroyed the "laboratory conditions" for a free election. A complaint was issued against the hospital, alleging a refusal to bargain in violation of §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1). In answering the complaint, the hospital admitted the refusal to bargain, but denied it had committed an unfair labor practice, contending that the bargaining unit was inappropriate and that the union had engaged in impermissible conduct prior to the election. The general counsel filed a motion for summary judgment with the Board.

On August 11, 1980, the Board issued its decision and order granting summary judgment in favor of the general counsel and against Vicksburg Hospital. ² The Board determined that the issues raised by the hospital had been previously decided and resolved against it in the underlying representation case and that the hospital had not presented any newly discovered evidence or made a showing of special circumstances requiring a reexamination of the Board's rulings in the representation case. The Board, therefore, determined that there were no material issues of fact to be litigated in the unfair labor practice proceeding and, accordingly, held that the hospital had violated §§ 8(a)(5) and (1) of the National Labor Relations Act by its refusal to bargain with the certified representative of the employees in the unit found appropriate. The Board's order requires the hospital to bargain with the union as the exclusive representative of all employees in the appropriate unit and to embody any understanding reached in a signed agreement.

II. Appropriateness of the Bargaining Unit

Section 9(b) of the National Labor Relations Act, 29 U.S.C. § 159(b), directs the Board to "decide in each case ..., in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for purposes of collective bargaining ...." In making this determination, "(t)he Board is not by statute required to choose the most appropriate bargaining unit, only to select a unit appropriate under the circumstances." NLRB v. Southern Metal Service, Inc., 606 F.2d 512, 514 (5th Cir. 1979) (emphasis in original). Moreover, "(t)o set aside a Board certified unit, the employer must establish that the designated unit is clearly not appropriate. A showing that some other unit would be appropriate is insufficient, for a choice among appropriate units is within the discretion of the Board." NLRB v. J. C. Penney Co., Inc., 559 F.2d 373, 375 (5th Cir. 1977). As was stated in NLRB v. Southern Metal Service,

"(t)his Court's standard of review is 'exceedingly narrow' in a challenge to the Board's determination of an appropriate bargaining unit. NLRB v. Fidelity Maintenance & Construction Co., 424 F.2d 707, 709 (5th Cir. 1970). The Board's decision 'involves of necessity a large measure of informed discretion,' and '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). The decision will not be set aside unless the Board's discretion has been exercised 'in an arbitrary or capricious manner.' Spartans Industries, Inc. v. NLRB, 406 F.2d 1002, 1005 (5th Cir. 1969); see J. C. Penney, 559 F.2d at 375."

606 F.2d at 514.

Despite the limited nature of judicial review available in such a case, Vicksburg Hospital argues that the Board's determination of an appropriate bargaining unit consisting of all service, maintenance and technical employees was arbitrary, capricious and an abuse of discretion because it was inconsistent with the Board's prior decisional rulings dealing with health care institutions. Specifically, the hospital objects to the inclusion of technical employees (predominantly licensed practical nurses) in the same bargaining unit with service and maintenance employees. In support of its position, the hospital cites Barnert Memorial Hospital Center, 217 NLRB 775, 89 LRRM 1083 (1975), in which the Board indicated that, in reference to health care institutions, it would not normally compel the inclusion of technical employees in the same bargaining unit with service and maintenance employees. ³ Accord, Jewish Hospital of Cincinnati, 223 NLRB 614, 91 LRRM 1499 (1976).

The hospital argues that the regional director, in his decision on an appropriate bargaining unit, relied solely on the traditional "community of interest" criteria, see NLRB v. J. C. Penney Co., 559 F.2d at 375, and failed to articulate a satisfactory reason for deviating from the Board's established policy of "not normally compel(ling) the inclusion of technical employees in a unit composed of service and maintenance employees." Jewish Hospital of Cincinnati, 223 NLRB at ____, 91 LRRM at 1505. Although not citing Barnert or expressly stating why he was disregarding the Board's policy of not normally including technical employees in the same unit with service and maintenance employees, the regional director indicated that "(w)hen technical employees share a substantial community of interest with service and maintenance employees, a combined service, maintenance and technical employees unit is an appropriate unit." In support of this conclusion, the regional director cited Appalachian Regional Hospitals, Inc., 223 NLRB 542, 96 LRRM 1528 (1977); National G. South, Inc., d/b/a Memorial Medical, 230 NLRB 976, 95 LRRM 1478 (1977); and Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, 217 NLRB 802, 89 LRRM 1067 (1975). In each of these cases, the Board found a combined unit of service, maintenance and technical employees to be appropriate. Moreover, the Barnert decision was cited and discussed in Mount Airy, 217 NLRB at ____ n.2, 89 LRRM at 1068 n.2. We conclude, therefore, that the regional director was well aware of the Board's policy of not normally including technical employees in the same unit with service and maintenance employees, as was the Board when it denied the hospital's request for review of the regional director's decision, and that he, and the Board by denying the request for review, consciously determined that a combined unit of service, maintenance and technical employees would be appropriate...