Memorial Hospital of Roxborough

National Labor Relations Board - Board Decisions

Apr 25, 1975

217 N.L.R.B. 520 (N.L.R.B. 1975)

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memorial Hospital of Roxborough and Local 835, In-
ternational Union of Operating Engineers,
AFL-CIO. Case 4-CA-7003
April 25, 1975
ORDER TRANSFERRING PROCEEDING TO
THE BOARD
AND
NOTICE TO SHOW CAUSE
On November 29, 1974, the Acting Regional Direc-
tor for Region 4 of the National Labor Relations Board
issued a complaint and notice of hearing in the above-
entitled proceeding, alleging that the Respondent has
engaged in and is engaging in certain unfair labor prac-
tices affecting commerce within the meaning of Section
8(a)(1) and (5) and Section 2(6) and (7) of the National
Labor Relations Act, as amended. Subsequently, the
Respondent filed an answer, admitting in part and deny-
ing in part the allegations of the complaint and sub-
mitting affirmative defenses.
Thereafter, on February 24, 1975, the General Coun-
sel, by counsel, filed with the Board in Washington,
D.C., a motion for summary judgment and for issuance
of Board Decision and Order and memorandum in
support thereof, with exhibits attached. The General
Counsel submits that the Respondent, in its answer, is
attempting to relitigate unit and objection issues which
were litigated and decided by the Pennsylvania Labor
Relations Board, herein called State Board, in a repre-
sentation proceeding certifying the Union on March
25, 1974, prior to August 25, 1974, the effective date of
the nonprofit hospital amendments (P.L. 93-360). He
further asserts that these issues raise no question of fact
requiring a hearing and that the Board should give
"comity" to the State Board's certification and should
not permit relitigation of these issues raised by the
Respondent's answer. In addition, he submits that the
Union's initial demand for bargaining made on August
14, 1974, should be considered a continuing demand in
the light of the charge and amended charge filed on
September 9 and-November 11, 1974, after the effective
date of the nonprofit hospital amendments. He, there-
fore, moves that all allegations in the complaint be
deemed to be true and be so found, and that the Board
issue its Decision and Order based on such findings,
and grant such further relief as may be appropriate.
The Board-having duly considered the matter,
IT IS HEREBY ORDERED that the above-entitled proceed-
ing be, and it hereby is, transferred to and continued
before the Board in Washington, D.C.
Notice is hereby given that cause be shown in writ-
ing, filed with the Board in Washington, D.C., on or
before May 8, 1975 (with affidavit of service on the
parties to this proceeding), why the General Counsel's
Motion for Summary Judgment should not be
granted.'
MEMBER KENNEDY, dissenting:
I would deny General Counsel's Motion for Sum-
mary Judgment and dismiss the complaint herein. The
pleadings disclose two fatal defects in the General
Counsel's case and I would promptly dismiss the com-
plaint without following the circuitous path of issuing
a show cause order.
The unit described in paragraph 4 of the complaint
is inappropriate, in my opinion, and an order of this
Board to bargain in that unit would be contrary to the
clearly expressed congressional intent that we avoid
undue proliferation of bargaining units in the health
care field. Center . . . at both the House Committee
Reports, Congress noted with approval the recent trend
of Board decisions toward broader units in the health
care industry? One of the few specific cases cited with
approval was the Board's decision in Four Seasons
Nursing Center of Joliet, 208 NLRB (1974), in which
we held that a unit of maintenance employees in a
nursing home facility is not appropriate for purposes of
collective bargaining. Since I interpret the legislative
history of the recent health care amendments to our
Act as a clear admonition to not find maintenance units
to be appropriate, I think the interests of all parties are
best served by a prompt dismissal of the complaint
herein.
There is an additional reason for dismissing the com-
plaint without subjecting the parties to the further
delay and expense of preparing legal memoranda in
support of their positions. The General Counsel ap-
pears to concede that the Union's only request to bar-
gain was made on August 14, 1974, prior to the effec-
tive date of the health care amendments. He appears to
concede that the Union did not make a demand after
the effective date of the nonprofit hospital amend-
ments. Recent precedent would appear to foreclose our
reliance on conduct which occurred prior to our having
jurisdiction. In United States Postal Service, 200 NLRB
413, 414 (1972), we said:
Member Penello, while agreeing with Member Kennedy that approval
of a maintenance unit would constitute undue proliferation of units under
the recent health care amendments to the Act, would not dismiss the com-
plaint at this time. In Member Penello's view, a summary dismissal would
be warranted only on the basis of a proper motion and such motion to
dismiss is not presently before the Board. Moreover, the Board has not yet
decided under what circumstances it will give comity to State Board unit
determinations in the health care industry since the amendments.
2 P L 93-766, 93d Cong., 2d sess 5 (1974), H. Rept 93-1051, 93d Cong,
2d sess 7 (1974)
217 NLRB No. 99
MEMORIAL HOSPITAL OF ROXBOROUGH 521
Nothing in the Postal Reorganization Act in- Respondent has expressed a willingness to agree to an
vests in this Board the power to remedy an alleged election in a unit deemed appropriate by this Board. I
wrongdoing resulting from action which occurred think that this is the way to resolve this dispute with
at a time when we did not have jurisdiction and utmost dispatch.
which therefore is clearly beyond the scope of our
authority.