Allegheny General Hospital

National Labor Relations Board - Board Decisions

Dec 19, 1978

239 N.L.R.B. 872 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Allegheny General Hospital and International Union
of Operating Engineers, Local 95-95A, AFL-CIO.
Case 6-CA-8026
December 19, 1978
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENtI.LO.
MURPHY. AND TRUESDALF
On July 19, 1977, a three-member panel of the
Board issued a Decision and Order in the above-enti-
tled proceeding,' finding (1) it was proper to extend
comity to the certification by the Pennsylvania La-
bor Relations Board (PLRB) of the Charging Party
as the bargaining representative of Respondent's
maintenance department employees; (2) Respon-
dent, on and after December 4, 1974, unlawfully re-
fused to bargain with the Charging Party; and (3) the
strike of January 20, 1975, by Respondent's mainte-
nance department employees was caused by that un-
lawful refusal and was therefore an unfair labor prac-
tice strike. A bargaining order was issued and the
strikers were ordered reinstated as unfair labor prac-
tice strikers. Subsequently, the full Board decided to
reconsider this Decision and Order in light of the
recent decisions by the United States Court of Ap-
peals for the Third Circuit in Memorial Hospital of
Roxborough v. N.L.R.B. 2 and St. Vincent's Hospital v.
N.L.R.B.'
In Memorial Hospital of Roxborough v. N.L.R.B.,
the court held that the extension of comity to a
PLRB certification where, as here, the parties had
contested the underlying unit determination was con-
trary to the Act. We respectfully disagree with that
holding and believe that the circumstances of this
case demonstrate why the Board's policy regarding
comity is consistent with the Act.
In St. Vincent's Hospital v. N.L.R.B., the court de-
cided that the legislative history of the 1974 amend-
ments to the Act,4 specifically the statement in the
accompanying Senate and House committee reports
that "[d]ue consideration should be given by the
Board to preventing proliferation of bargaining units
in the health care industry" s and the explanations of
1230 NI.RB 954 (Member Penello dissentirng
2 545 F.2d 351 (1976)
1567 F.2d 588 (1977).
4 Prior to 1974. Sec. 2(2) excluded "alnN corporation or ass,,cl;ltion operal-
ing a hospital, if no part of the net earnings Inures tio the benefit of tn',
pnvate shareholder or individual" from the statutory definition Orii "iem-
ployer." The 1974 amendments eliminated this exempttin Public I.as 93
360, 88 Stat. 395 (effective August 25. 1974)
S. Rept. 93 766, 93d Cong. 2d Sess 5 (197 4). "Legislatlve Hlhstors if the
Coverage of Nonprofit Hospitals Under the National Labotir Relatlonx Act.
1974" (hereinafter Leg Hist.) at 12; 11 Rept. 93 1501. 93d ('ing 2d Se>s
it offered by certain sponsors of the amendments,
precluded the Board from finding appropriate sepa-
rate units of maintenance and powerhouse employ-
ees at health care institutions. For support, the court
cited the Board's decisions in Shriners Hospitals for
Crippled Children 6 and The Jewish Hospital Associa-
tion of Cincinnati d/b/a Jewish Hospital of Cincinnati.7
After carefully reconsidering the legislative history of
the 1974 amendments, we have concluded, that, with
all due respect to the court, Congress did not intend
to prohibit such units. Further, in Shriners and Jew-
ish Hospital of Cincinnati, majorities of the Board
agreed that legislative history did not do so.8 Also in
its decision in St. Vincent's Hospital v. N.L.R.B., the
court went on to conclude that the legislative history
of the 1974 amendments also precluded the Board
from relying on its traditional community-of-interest
criteria in making unit determinations in the health
6 7 (1974). Leg. Hist.. supra at 274-275.
r 217 NLRB 806 (1975)
7223 NLRB 614 (1976).
s The court stated in Sr V'incent'r Hospital v. N.L.R.B., 567 F.2d at 592:
The Board rejected a petition for representation of five stationary
engineers in Shriners Hospitals. Although it recognized that under ordi-
nary circumstances similar units had been approved in other industries.
the Board stated that ordinary circumstances do not exist in the hospi-
tal field. The majority concluded:
"It is in the context of the peculiar nature of the industry and the
congressional nmandate against the proliferation of bargaining units
that we have weighed all of the critena traditionally considered when
making a unit determination and have, on balance, concluded that it
is proper to place special significance on the high degree of integra-
tion of operations performed throughout a health care facility.
Were we to adopt the rationale applied by our dissenting col-
leagues. we could be faced with requests to find appropriate dozens
of separalte units of employees performing diverse professional, tech-
Imical, nd service and maintenance functions in an industry which.
bh its sers nature. requires great numbers of employees in a myriad
of classifications al! ultimately involved in providing patient care.
We shall niot d, so, because such an approach can only lead to an
undue fragmentation of bargaining units in the health care industry
which would totalls frustrate congressional intent." 217 NLRB 806.
t0)8 (1975)
SLahbeqiientls In Jicvith IlIspitial 4.siaii.ui ri. 223 NLRKB 614(1976), the
B;iiid eleclted I bargaiining uilt composed oinly of engineering em-
ployees and approveed one composed of all maintenance and service
personnel
We consider these statcnlents toi be correct expressions of the law
properl, recogniling the considerailtons to be :pplied bs the Board. We
are unable to reconcile the decisions and their rationale with the result
reached in the case ith /judti'
I/ic Shrilnr majoritl the courl refers to consisted of Members Kennedy
and Penello Then (hairman Murphy and then Member Fanning. in their
dissent. and Member Jenkins. in his concurrence. specifically rejected the
raitinile quotted chabe bh the court Member Jenkinsjoined Members Ken-
neds i and Penellto in disnissing the petlion. hut onl? because he found the
unit inappropriate under his view of the facts of that case. Chairman Mur-
phs anld Member Fainning would have found the petitioned-for unit appro-
priate
In J*ii Ih lylttopl l (tli s itrlti, the entire Board. including Member Pe-
neli o I Memhber Kennedids's term had since expired). agreed that the legisla-
tsei hislor. did not bar all maintenance units at health care institutions.
Members Jenkins. Penello. and Walther decided. however. that on the par-
ticLalal lacts of that case a separ;ate nlaintPrance unit was not warranted.
IFhall case however cannot he read as holding that as a matter of law all
hospiltaJ maintlenance units are preculeded hy the 1974 amendments.
872
ALLEGHENY GENERAL HOSPITAL
care industry.Y On this point, too, we must respectful-
ly disagree.
1.
That Congress did not intend to preclude the
Board from finding appropriate units limited to hos-
pital maintenance departments is, we believe, clear.
In Jewish Hospital of Cincinnati, the entire Board
agreed on this point: '
As we have recognized and continue to recog-
nize, our consideration of the issues related to
the composition of bargaining units in the health
care industry must necessarily take place against
the background of avoidance of undue prolifera-
tion. However, Congress left the matter of the
determination of appropriate units to the Board,
and the desire for nonproliferation does not, in
our judgment, necessarily preclude our granting
maintenance units in the health care area. Con-
gress was awaie that the Board ihas sometimes
found that a separate maintenance unit is appro-
priate if the maintenance employees possess a
community of interest sufficiently separate and
distinct from the broader community of interest
they share with other employees to warrant their
inclusion in a separate unit. Yet, it did nothing
to preclude our granting such units. Congress in
fact rejected Senator Taft's suggestion that
maintenance employees should always be com-
bined with service employees into a single unit."
The Court of Appeals for the Second Circuit has
agreed with this conclusion.' The logic of Jewish
9 The court stated:
The Board decided to apply traditional standards which recognize that
units of licensed boilermen may constitute separate appropriate units
The legislative history of the health care amendments. however.
makes it quite clear that Congress directed the Board to apply a stan-
dard in this field that was not traditional..
A mechanical reliance on traditional patterns based on licensing. super-
vision, skills and employee joint activity simply does not compls with
congressional intent to treat this unique field in a special manner (567
F.2d at 592.]
o 223 NLRB at 616.
i S. 2292. 93d Cong.. Ist Sess. (1973). introduced earlier by Senator ]aft,
would have amended Sec. 9(b) to provide:
[T]he Board shall not decide that any unit in a health care Institution Is
appropriate for purposes of collective bargaining which (i( includes
professional employees unless all of the professional employees em-
ployed by such institution are included therein; or (iit) includes technl-
cal employees (as defined from time to time by the Board) unless all of
the technical employees employed by such institution are included
therein; (iii) includes clerical employees unless all of the clerical em-
ployees employed by such institution are included therein; or