St. Luke's Hospital Center

National Labor Relations Board - Board Decisions

Jan 2, 1976

221 N.L.R.B. 1314 (N.L.R.B. 1976)

1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Luke's Hospital Center , and St . Luke's Profes-
sional Dieticians and District 1199 , National Union-
of Hospital and Health Care Employees A.Division
of RWDSU, AFL-CIO, Party to the Contract -
District -1199, National Union of Hospital and Health
Care Employees A Division of RWDSU, AFL-
CIO and St. Luke's Professional Dieticians and St.
Luke's Hospital Center, Party to the ` Contract.
Cases 2-CA-13501 and 2=CB-5709
January 2, 1976
DECISION AND ORDER
B Y " MEMBERS FANNING, JENKINS, AND
PENELLO
On September 3, 1975, Administrative Law, Judge
Herbert, Silberman issued, the attached Decision in
this proceeding dismissing the complaint. Thereafter,
the Acting General Counsel, hereinafter, called
General- Counsel and Charging. Parties' filed excep-
tions and supporting briefs and District 1199
resubmitted its brief , to the Administrative Law
Judge in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
St. Luke's Hospital Center, the Employer, is a
private, nonprofit hospital. On August 25, 1974,
Public Law 93-360 became effective, eliminating the
exemption from coverage of the National Labor
Relations Act with respect to such hospitals. Essen-
tial elements of this case took place prior to the
amendment's effective date. The facts are not in
dispute. In April 1973, District 1199 (Union) filed a
petition (SE-46665) with the New York State Labor
Relations Board (NYSLRB) seeking an election in a
unit of technical employees and professional employ-
ees2 employed by the Employer, among which, as the
parties in this proceeding agree , were several classifi-
cations of professional employees, such as social
i Charges were filed in the above-captioned cases by the law firm of
Feltner & Rovms, New York City, on October 24, 1974, and amended
charges were filed by St. Luke's Professional Dieticians on April 3, 1975
The cases were consolidated for the purposes of issuing a consolidated
complaint and conducting a hearing.
2 It is undisputed that these employees are professional employees within
the meaning of Sec. 2(12) of our Act and that the unit as certified by New
York State combines them with nonprofessional employees
3 Other organizations filed petitions seeking separate units of pharma-
cists and pharmacist-interns (SE-46727) and dental hygienists (SE-4678 1).
221 NLRB No. 217
workers, pharmacists, therapists, dental hygienists,
and dieticians.
In May 1973, a group known as the Professional
Dietician Employees of St. Luke's Hospital Center
filed a petition with the NYSLRB (SE-46726) for an
election, in a separate unit of dieticians after which
St. Luke's Hospital Center, District 1199, and the
Professional Dieticians entered into a consent agree-
ment, subject to the approval of,the state board, for
an election .providing the dieticians with an oppor-,
tunity to,vote on whether or not they desired to be
represented in a separate unit and whether they
wished to be represented by District 1199, or the
Professional Dieticians of St. Luke's Hospital Center,
or neither. Subsequently, the NYSLRB rejected the
consent agreement and directed an election in the
unit initially petitioned for by District 1199 which
combined both technical and professional employ-
ees. In view of the petition for a separate unit of
dieticians, the state board ordered that the ballots of
those sought' to be separately represented be chal-
lenged pending determination of their professional
status. The election was conducted on June 7, 1973,
and resulted in District 1199 being certified as the
collective-bargaining representative for , the unit
found appropriate,' excluding dieticians. Soon there-
after, the Employer and District 1199 executed a
bargaining agreement covering the employees in the
certified unit. Subsequent to the election at which the
dieticians cast challenged ballots, the NYSLRB
determined that under New York statute voting of
professional employees separately depends on wheth-
er a labor organization seeks to represent them in a
separate unit. Having made that determination, the
NYSLRB found that the organization requesting
such an election for the dieticians was not a labor
organization as defined by New York statute, and
that consequently, even if the dieticians were
professionals, a question there left unresolved, no
basis for a separate vote existed under New, York
law.3 Based on that conclusion, the state board
dismissed the petition filed by the Professional
Dieticians of St. Luke's Hospital and amended its
previous certification of District 1199 to include the
dieticians .4 The Employer and District 1199 on July
26, 1974, on the day the President signed the Federal
amendment, amended their bargaining agreement to
cover these employees. Since that time the dieticians
Votes cast by these employees were also challenged pursuant to the
NYSLRB direction of election pending resolution of their professional
status. Following the election the state board found that the organizations
which filed these petitions were not labor organizations as defined by New
York statute and these employees were accordingly included with the
dieticians in the amended certification of the unit represented by District
1199 in July 1974
4 The challenged ballots were not opened because they would not have
affected the outcome of the election numerically.
ST. LUKE'S HOSPITAL CENTER 1315
have refused to become members of the Union or to
pay initiation fees or dues as required by the union-
security clause of the collective-bargaining agree-
ment , while all other employees in the unit as
covered by the agreement have complied. In October
1974, the Union insisted that the Employer enforce
the union-security provision of their agreement.
Thereafter, the Employer notified the dieticians that
they were required to become members of the Union
within a stated period of time or terminate their
employment. In March 1975, the Union demanded,
by letter to the Employer, that the dieticians be
discharged for their failure to comply with the union-
security provision.5
The General Counsel alleges that the actions taken
by the Employer and the Union to enforce the union-
security provision violate Sections 8(a)(3) and 8(b)(2)
and (1)(A) of the 'Act. His allegations are bottomed
on the health care amendments effective August 25,
1974, which provided for this Board's jurisdiction
over private, nonprofit hospitals such as the Employ-
er. The General Counsel contends that it is well
established that it is unlawful to cause or attempt to
cause the discharge of employees because of non-
membership, absent the existence of-a valid contract
between a union and an employer containing a
union-security clause meeting the requirements set
forth in the proviso to Section 8(a)(3). Thus, the
validity of a -union-security clause is conditioned on
the union being the representative of the employees
in "the appropriate collective bargaining unit cov-
ered by such agreement when, made." It is the
General Counsel's contention that Section 9(b)(1) of
the Act requires that professional employees have an
opportunity to vote on whether or not they desire to
be included in a unit with nonprofessional employees
and that the New York State Board's action in not
providing such an ' election - renders the state certified
unit inappropriate under our statute. Thus, the
General Counsel asserts that the recent attempt of
the Respondent Union and Employer to enforce the
union-security clause violates our statute.
The Administrative Law Judge found`no basis on
which to conclude that the alleged violations had
occurred, fording that the recent health care amend-
ments did not invalidate a collective-bargaining
agreement which was lawful when made and that
action taken to maintain and enforce its provisions
were not violative of the Act. In the circumstances of
this case, we disagree with the Administrative Law
Judge's conclusions that the enforcement of the
5 Thereafter, at the Union's request , the matter was referred to
arbitration . The arbitrator issued an award on October 14, 1975, finding
that the Employer, upon the Union's request, must enforce the union-
security provision of the contract. We do not, however, consider this
binding upon us, the application of Sec. 9(b)(1) being solely within the
Board's purview.
union-security clause by threatening to discharge the
dieticians in these specific circumstances was lawful.
In the past, we have considered the mandate of
Section 9(b)(1) as precluding this Board from
certifying a unit combined of professional and
nonprofessional' employees without first affording
the professional employees the opportunity to decide
whether they desire on that basis such a unit
configuration.6 Inasmuch as Section 9(b)(1) does not
find such units to be unlawful per se, we have
construed that section as not invalidating as inappro-
priate an historically established contract unit com-
bining professional and nonprofessional employees
where the unit was voluntarily created by the parties
and maintained by them for many years without
challenge.?
In this case, however, we are faced with the
situation where, for the several months since July
1974, when the Employer and the Union pursuant to
a state board's amended certification extended the
coverage of their bargaining agreement to include
dieticians, these professional employees have not
complied with the existing union-security clause,
having refused to assume membership in the Union
or to pay union initiation fees or dues. It is quite
evident that no stable bargaining relationship involv-
ing these dieticians has resulted which would be
endangered, and that the continuing refusal to
comply with the union-security provision reflects the
dieticians' lack of consent to inclusion in the mixed
professional and nonprofessional unit. When Con-
gress enacted Section 9(b)(l) its mandate was that
recognition should be afforded to the "special
problems" of professional persons who "have a great
community of interest in maintaining certain stand-
ards." 8
It is well established that the Board will recognize
the validity of state-conducted elections and certifi-
cations where the election procedure was free of
irregularities and reflected the true desires of employ-
ees. Cornell University, 183 NLRB 329, 334.(1970).
The circumstances attending the certification of
these dieticians are unusual , if not irregular. Though
the ballots were impounded, they were ultimately not
counted because under state law separate representa-
tion required a bargaining agent that qualified as a
labor organization in , the State. The St. Luke's
Professional Dieticians was found not to qualify. The
State Board's failure to proceed to a tally of the
challenged votes of dieticians and certify only if a
majority had voted to be represented in a unit
6 Retail Clerks Local Union No 324, Retail Clerks International
Association, AFL-CIO (Vincent Drugs No 3, Inc.), 144 NLRB 1247 ( 1963).
7 Id., at 1254.
8 S. Rept. 105, 80th Cong., 1st sess 11; I Leg Hist 417, Labor
Management Relations Act, 1947.
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including nonprofessionals was repugnant to Section
9(b)(1) of the Act we administer. Although the
amended state certification occurred, in effect,
between the signing of the amendment to our law
and its effective date, the violations of our Act that
we, are asked to remedy have occurred after the
effective date of the new legislation giving the Board
jurisdiction over this type of hospital. In the
circumstances, including the absence of meaningful
bargaining for the dieticians, we shall find the 8(b)(2)
and (l)(A) and the 8(a)(3) violations. Our action here
is analogous to that -recently taken in Brookhaven
Memorial Hospital, 214 NLRB No. 159 (1974), where
this Board, considering the unit there sought by the
hospital as currently in the process of being
"established," did not defer to an on-going state
election proceeding that could have resulted in the
certification of a mixed unit without affording a
separate vote to professional.
CONCLUSIONS OF LAW
1. St. Luke's Hospital Center is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District 1199, National Union of Hospital and
Health Care Employees a Division of RWDSU,
AFL-CIO, is a labor organization within, the mean-
ing of Section 2(5) of the Act.
3. By threatening to discharge dieticians for their
failure to comply with the union-security provision of
the collective-bargaining agreement in the circum-
stances of this case, the Employer, St. Luke's
Hospital Center, has violated Section 8(a)(3) and (1)
of the Act.
4. By attempting to cause the Employer, St.
Luke's Hospital Center to discharge the dieticians as
aforesaid, District 1199 has violated Section 8(b)(2)
and (1)(A) of the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Employer and District 1199
have engaged in certain unfair labor practices, we
shall order that they cease and desist therefrom and
take certain affirmative action designated to effectu-
ate the policies of the Act.
Upon the foregoing undisputed facts, conclusions
of law, and the entire record, we hereby issue the
following:
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
ORDER
Pursuant to Section ,10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employer, St. Luke's Hospital
Center, New York, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to discharge dieticians employed
by it because of the failure of these employees to
comply with the union-security clause of the collec-
tive-bargaining agreement between St. Luke's Hospi-
tal Center and District 1199.
(b) Maintaining or enforcing or attempting to
maintain or enforce in any manner the union-
security clause of the aforementioned collective-
bargaining agreement with respect to dieticians of St.
Luke's Hospital Center who-have refused to comply
with said clause.
(c) In any other manner interfering with, restrain-
ing, or coercing these aforementioned employees in
the exercise of the rights guaranteed them in, Sections
7 and 9(b)(1) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Withdraw, rescind, and give no further effect to
any notice, memorandum, letter, or statement which
can be reasonably construed as maintaining or
enforcing, or attempting to, maintain or enforce, the
union-security clause with respect to dieticians who
have refused to comply therewith.
(b) Post at the St. Luke's Hospital Center, New
York, New York, copies of the attached notices
marked "Appendix A" and "Appendix B."9 Copies
of said notices, on forms provided by the Regional
Director for Region 2, after being duly signed by
representatives of each Respondent, as, the case may
be, shall be posted by Respondent Employer imme-
diately upon receipt thereof, and be maintained for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be
taken by Respondent Employer to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Mail to the Regional Director for Region 2
signed copies of the attached notice marked
"Appendix A" for posting by Respondent District
1,199. Copies of said notice, on forms provided by
said Regional Director, shall, after being signed by a
representative of Respondent Employer be returned
forthwith to the Regional Director for such posting.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
ST. LUKE'S HOSPITAL CENTER
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent District 1199, its officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause, St. Luke's
Hospital Center to threaten to discharge, or in any
other way to discriminate against dieticians who
have refused to comply with the aforementioned
union-security clause.
(b) Maintaining or enforcing, or attempting to
maintain or enforce, in any manner the union-
security clause of the aforementioned collective-
bargaining agreement with respect to dieticians of St.
Luke's Hospital Center who have refused to comply
with such clause.
(c) In any other manner interfering with, restrain-
ing, or coercing these aforementioned employees in
the exercise of their rights guaranteed them in
Section 7 and 9(b)(1) of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Withdraw, rescind, and give no further effect to
any notice, memorandum, letter, or statement which
can be reasonably construed as maintaining or
enforcing, or attempting to maintain or enforce, the
union-security clause with respect to dieticians who
have refused to comply therewith.
(b) Post at its business office and usual member-
ship meeting places copies of the attached notices
marked "Appendix A" and "Appendix B." 10 Copies
of said notices, on forms provided by the Regional
Director for Region 2, after being duly signed by
representatives of each Respondent, as the case may
be, shall be posted by Respondent District 1199
immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous
places, including all places where ',notices to members
are usually posted. Reasonable steps shall be taken
by Respondent District 1199 to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Mail to the Regional Director for Region 2
signed copies of the attached notice marked
"Appendix B," for posting by Respondent Employer.
Copies of said notice, on forms provided by said
Regional Director, shall, after being signed by a
representative of Respondent District 1199, be
returned forthwith to the Regional Director for such
posting.
(d) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps Respondent District 1'199 has taken to
comply herewith.
APPENDIX A
1317
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
post this notice and we intend to carry out the Order
of the Board.
WE WILL NOT threaten to discharge dieticians
who have refused to comply with the union-
security provision of the collective-bargaining
contract between us and District 1199, National
Union of Hospital and Health Care Employees, a
Division of RWDSU, AFL-CIO, in view of the
impact of Section 9(b)(1) of the National Labor
Relations Act in the circumstances of this case.
WE WILL NOT in any other manner maintain or
enforce, or attempt to maintain or enforce, the
union-security provision of the aforementioned
collective-bargaining agreement with respect to
the dieticians who have refused to comply with
that provision.
WE WILL NOT in any other manner interfere
with, restrain, or coerce these dieticians in the
exercise of their rights guaranteed them under
Sections 7 and 9(b)(1) of the National Labor
Relations Act.
WE WILL withdraw and rescind and give no
effect to any and all notices, memoranda, or
letters from us which state, or can be reasonably
construed to state, that the dieticians who have
refused to comply with the union-security clause
of the contract between us must comply therewith
or terminate their employment.
ST. LUKE'S HOSPITAL
CENTER
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we violated the
National Labor Relations Act, and has ordered us to
10 See fn 9, supra.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
post this notice and we intend to carry out the Order
of the Board.
WE WILL NOT cause or attempt to cause St.
Luke's Hospital Center to discharge dieticians
who have refused to comply with the union-
security provision of the collective-bargaining
agreement between us and St. Luke's Hospital
Center, in view of the impact of Section 9(b)(1) of
the National Labor Relations Act in the circum-
stances of this case.
WE WILL NOT in any other manner maintain or
enforce, or attempt to maintain or enforce, the
union-security provision of the aforementioned
collective-bargaining agreement with respect to
the dieticians who have refused to comply with
that provision.
WE WILL NOT in any other manner interfere
with, restrain, or coerce these dieticians in the
exercise of their rights guaranteed them under
Sections 7 and 9(b)(1) of the National Labor
Relations Act.
WE WILL withdraw, rescind, and give no effect
to any and all statements, notices, memoranda, or
letters from us which demand or can be reason-
ably construed to demand that the dieticians who
have refused to 'comply with aforementioned
union-security provision must comply therewith
or terminate their employment or be discharged.
DISTRICT 1199,
NATIONAL UNION OF
HOSPITAL AND HEALTH
CARE EMPLOYEES, A
DIVISION OF RWDSU,
AFL-CIO
enforcing an unlawful collective-bargaining agreement in
that the contract covers both professional and technical
employees although certain classifications of professional
employees were not first afforded an opportunity to vote
for inclusion in the unit with nonprofessional employees.
The Hospital filed an answer , dated May 19, 1975, which
denies that it has engaged in the alleged unfair labor
practices and asserts as an affirmative defense that the
actions complained of "were taken in accordance with
applicable law in effect at the time and cannot be
retroactively declared invalid ." The Union filed an answer,
dated May 30, 1975 , which denies that it has engaged in
the alleged unfair labor practices and asserts as affirmative
defenses : first , that the unit described in the complained of
collective-bargaining agreement was established pursuant
to a valid certification issued by the New York State Labor
Relations Board at a time when that body had, junsdiction,
and the National Labor Relations Board has no authority
retroactively to declare invalid "actions taken in accord-
ance with applicable law in effect when the actions
complained of were taken"; second, the professional
employees who are the subject of the complaint in this case
constitute a minority of the professional workers in the
bargaining unit covered by the complained-of contract;
third, as a matter of comity, the Board should -recognize the
certification issued by the New York State Labor Relations
Board; and fourth, the Board should defer, its jurisdiction
to an arbitration proceeding instituted under the provisions
of the contract, which will determine the identical issues
raised by the instant complaint.
A hearing in these proceedings was held on June 23 and
24, 1975, in New York, New York. Posthearing briefs were
filed with the Administrative Law Judge by General
Counsel and the Union.
Upon the entire record in the case , I make the following:
FINDINGS OF FACT
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Administrative Law Judge: A
charge having been filed in each of the above -numbered
cases by the law firm of Fellner and Rovins on October 25,
1974, and an amended charge having been filed in each
case by St. Luke's Professional Dieticians on April 3, 1975,
an order consolidating the separate cases and a complaint
therein was issued on May 8, 1975. The complaint, as
amended at the hearing , alleges that St. Luke's Hospital
Center, herein called the Hospital or the Employer, has
engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended,
and that District 1199, National Union of Hospital and
Health Care Employees A Division of RWDSU, AFL-
CIO, herein called the Union , has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(b)(1)(A) and (2) of the
Act. In substance , the complaint alleges that the Hospital
and the Union have been maintaining in effect and
1. JURISDICTION
St. Luke's Hospital Center, a nonprofit New York
corporation, is engaged in the operation of a general care
hospital in New York, New York . During the calendar
year 1974, the Hospital had gross revenues in excess of $1
million and purchased supplies and materials - valued in
excess of $50,000 from firms located , outside the State of
New York which were shipped directly to the Hospital
through channels of interstate commerce . Respondents
admit , and I find, that the Hospital is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District 1199, National Union of Hospital and Health
Care Employees A Division of RWDSU, AFL-CIO,
formerly known as the Guild of Professional, Technical &
Office Employees, Local 1199, Drug & Hospital Union,
AFL-CIO, is a labor organization within the meaning of
the Act.
ST. LUKE'S HOSPITAL CENTER 1319
III. THE ALLEGED UNFAIR LABOR PRACTICES
The issue in this case is whether the Hospital and the
Union since August 24, 1974, when the nonprofit hospital
amendments to the National Labor Relations Act (Public
Law 93-360) became effective, have violated the Act by
continuing to impose the terms of their subsisting collec-
tive-bargaining agreement, including its union-security
clause, upon several classifications of professional' employ-
ees. The most recent contract between the Hospital and the
,Union, executed on July 26, 1974, covers a unit of
technical and professional employees as described in an
amended certification issued by the New York State Labor
Relations Board, herein referred to as the NYSLRB, on
May 22, 1974. The NYSLRB had denied several profes-
sional employee groups the opportunity to vote upon
whether they wished to be included in a unit with
nonprofessional employees. Thus, the question is whether
the nonprofit hospital amendments to the Act invalidate a
collective-bargaming agreement which was lawful when
made only because the unit certified by the NYSLRB, at a
time when it had jurisdiction, did not give professional
employees a self-determination election. Such self-determi-
nation election would have been required pursuant to
Section 9(b)(1) had the National Labor Relations Board
then had jurisdiction.
The relevant facts, which are not in dispute, are, as
follows:
April 16, 1973: The Union filed with the NYSLRB in
Case SE-4666 a petition for an election in a proposed unit
of the Hospital's professional' and technical employees.
May 1, 1973: Professional Dietician Employees of St.
Luke's Hospital Center filed with the NYSLRB in Case
SE-46726 a petition for an election in a unit of the
Hospital's therapeutic, clinical, and research dieticians.
(The parties in the instant case stipulated that these
dieticians are professional employees within the meaning
of the Act.)
May 8, 1973: Agreement for Consent Election, subject to
the approval of the NYSLRB, was entered into by the
Hospital, the Union, and the Professional Dietician
Employees of St. Luke's Hospital Center in the proceeding
filed by the Dieticians which would give the dieticians an
opportunity to vote as to whether they desired a separate
bargaining unit or desired to be included in a broader unit
of technical and professional employees.
May 24, 1973: Memorandum and Direction of Election
was issued by NYSLRB in Case SE-46665 (36 SLRB 33),
directmg an election in the unit of technical and profes-
sional employees requested by the Union. However,
separate petitions had been filed seeking to represent in
separate units various classifications of employees included
in the requested unit of technical and professional
employees. These petitions sought units of. research
dieticians, therapeutic dieticians, and clinical dieticians
(Case SE-46726); pharmacists and pharmacist-interns
(Case SE-46727); physical therapists (Case SE-46764);
dental hygienists (Case SE-46781); and electroencephalo-
graphic technologists (Case SE-46575). The NYSLRB
further directed that:
Those employees in classifications for which separate
petitions are pending and undetermined may vote, but
their ballots will be challenged. If any of them are
subsequently found to -be professionals and they
subsequently vote, in a self-determination election, in
favor of a separate bargaining unit, they will then be
excluded from the unit of technical employees. This
procedure affords all-employees an early opportunity to
participate in an election, as-agreed upon-and requested
by the parties, but reserves the issues affecting those
employees in the "challenged classifications pending
future determination of their unit placement. -
June 7, 1973: An election was conducted in the unit
described in Case SE-46665. The tally of ballots showed
that of approximately 334 eligiblel voters 151--ballots were
cast for the Union,, 61 ballots were cast against the Union,
1 ballot was declared void, and 71 ballots were challenged.
June 21`, 1973: A certification of representative issued by
NYSLRB (Decision 13615), certifying the Union as the
exclusive representative of the Hospital's technical--and
professional, employees, but excluding from the unit,
among other-s,, the classifications of employees with respect
to whom separate representation petitions had been filed.
August 1, 1973: The Hospital and,the Union entered into
a collective-bargaining agreement covering the :technical
and professional unit "as per the S.L.R.B. Case No. SE-
46665. Decision No. 13615, dated June 21, 1973."
May 22, 1974: The NYSLRB issued a Decision, Order
and Amended Certification of ,Representative (37 SLRB
No. 68), which, insofar as is relevant to this proceeding,
ordered that the certification of representative in Case SE-
46665 be amended so as to include in the appropriate
bargaining unit "the research dieticians, therapeutic
dieticians, clinical dieticians, pharmacists, pharmacist-in-
tern, dental hygienists and research assistants." (These are
the classifications which the complaint alleges are unlaw-
fully covered by the subsisting contract between the
Hospital and the Union.)
By an exchange of letters between the Union and the
Hospital, respectively dated June 7 and July 19, 1974, the
above-listed classifications of professional employees were
added to the parties' collective-bargaining agreement.
July 26, 1974: The Hospital and the Union entered into
an agreement which succeeded the August 1, 1973,
agreement and which covered the classifications of
employees included in the unit certified by the NYSLRB as
amended on May 22, 1974.
October 16, 1974: The Union directed a letter to the
Hospital calling attention to the fact that a number of
dieticians had not signed checkoff authorizations and
benefit and pension forms pursuant to the union-security
clause of the parties' collective-bargaining agreement.
October 18, 1974: The Hospital caused advice to be
furnished to its dieticians that under the union-security
clause of the applicable collective-bargaining agreement
they were required to become members of the Union and
that if they did not comply with such requirement within a
stated period of time they would be terminated.
March 25, 1975: A letter was sent by the attorneys for
the Union to the attorneys for the Hospital reaffirming the
Union's demand that the dieticians named in the letter be
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for their failure to comply with the union-
security provision of the parties' collective-bargaining
agreement. (None of the persons named in the letter had
been discharged as of the date of the hearing.)
May 17, 1975: Arbitrator Morris P. Glushien issued an
Opinion and Order retaining jurisdiction in an arbitration
proceeding instituted by the Umon against the Hospital to
enforce the* union-security provision of the parties' agree-
ment with respect to a recalcitrant group of 18 dieticians
employed by the Hospital.
Attached hereto as an appendix is a list showing the
classifications of professional employees covered by the
parties' contract and the number of employees in each
classification.
I have read carefully and considered the oral argument
presented, at the hearing, the cogent arguments advanced
in the Union's brief, the thoughtful brief submitted on
behalf of General Counsel, the preliminary discussion of
the question which appears in the NLRB General
Counsel's "Monthly Report on Health Care Institution
Cases," dated March 27, 1975, pages 10 through 13, and
the Opinion issued by Arbitrator Morris P. Glushien. The
pertinent arguments with respect to the issues in this case
have been thoroughly and ably presented. I have nothing
to add which does not already appear in the oral argument
or in the written instruments referred to. It is my opinion,
and I find, that Public Law 93-360 does not invalidate the
agreements entered into between the Union and the
Hospital, which were lawful when made, and that
Respondents have not violated the Act by maintaining in
effect and enforcing the provisions of their agreement since
the effective date of Public Law 93-360.
CONCLUSION OF LAW
Respondents have not engaged in the violations of the
Act alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
APPENDIX
The first column lists the numerical position classifica-
tion of the professional employees covered by the parties'
contract, the second column the title, and the third the
number in each classification.
115 - Graduate Pharamacist - 4
136 - Staff Pharmacist - 10
172 - Social Worker - 34
173 - Senior Social Worker - 2
167 - Occupational Therapist - 5
160 - Speech Therapist/Audio I - 0
161 - Speech Therapist/Audio 2 - 0
163 - Language Pathologist - 1
150 - Speech Therapist/Audio Senior 1 - 0
151 - Speech Therapist/Audio Senior 2 - 4
317 - Research Technician A - 4
318 - Research Technician B - 0
945 - Dental Hygienist - 0
185 - Senior Occupational Therapist - 1
346 - Research Technologist A - 4
347 - Research Technologist B - 9
183 - Climc Dietician - 2
184 - Therapeutic Dietician - 13
101 - Research Dietician - 1
175 - Senior Recreational Therapist - 0