Petition — Local 144, Hotel, Hospital, Nursing Home & Allied Health Services Union v. Long Island College Hospital

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Supreme Court, U. $

Supreme Court of the United Pjates RODAK, JR., CLERK

Octoser Term, 1978

No, ....--- @ Y foes l l 6 0

Loca 144, Hotei, Hospirat, Nursinc Home anp

Auurep Heattu Services Union, SEIU, AFL-CIO,

Petitioner,

—V —

Tue Lone Istanp CoLiece Hosprrat,

and

Nationa, Lasor Reiations Boarp,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SHELDON ENGELHARD

Vuapveck, Evias, Vuapeck, ZIMNY

& Ence.narp, P.C.

Attorneys for Petitioner

1501 Broadway

New York, New York 10036

(212) 354-8330

Rosert L. Javvtis

Of Counsel

Dll

TABLE OF CONTENTS

PAGE

Opinions Below 1

Jurisdiction — 2

Questions Presented for Review .... 2

Statutes Involved . 2

Statement of the Case 4

Reasons for Granting the Writ 9

A. The Decision of the Court of Appeels Enun-

ciates a Test for the Application of the Comity

Doctrine Which Conflicts with Tests Applied

by Other Circuits —

B. The Decision of the Court of Appeals, by

Applying a Restrictive Test for Extending

Comity, Is Contrary to Decisions of the NLRB,

Fostering a Lack of Uniformity in the Admin-

istration of the NLRA Bi

C. The Decision of the Court of Appeals Raises

Matters of Recurring Importance Regarding

the Application of the 1974 Amendment to the

NLRA 13

Conclusion 14

PAGE

Appenpix A:

Opinion of the United States Court of Appeals for

a GIT TI cteniecattoscinicn Al

Appenpix B:

Decision and Order of the National Labor Rela-

BD TINE scnchscstehissidietsmeerslaiieniaiisteddiontaiaisiastiiaistedeniebansints Bl

CrraTIONS

Cases:

Bluefield Produce & Provision Company, 117 NLRB

Taser CUTEIETTD ccissnsiibiicssnsnssinititiaenesiesiciietaasshitmemiagieenicimmeaiaatientiiiide 12

Cornell University, 183 NLRB 329 (1970) .................... 12

Long Island College Hospital, 27 SLRB 405 (1964)... 4

Long Island College Hospital v. Catherwood, 23 N.Y.

2d 20 (1968), appeal dismissed, 394 U.S. 716 (1969) 6

Long Island College Hospital v. New York SLRB,

32 N.Y.2d 314 (1973), cert. denied, 415 U.S. 957

(1974) a = ai 6

Memorial Hospital of Roxborough, 220 NLRB 402

{| eres debicidialatne hed 6, 7,12

Memorial Hospital of Roxborough v. National Labor

Relations Board, 545 F.2d 351 (3d Cir. 1976) .... 7,8,

9,10

National Labor Relations Board v. Hearst Publica-

we ff SE ee 12

PAGE

St. Joseph’s Hospital, 221 NLRB 1253 (1975) ........ 11,12

St. Joseph’s Hospital v. National Labor Relations

Board, 542 F.2d 495 (8th Cir. 1976) 11

Screen‘Print Corporation, 151 NLRB 1266 (1965) ... 12

The West Indian Co., Ltd., 129 NLRB 1203 (1961) ... 12

Statutes:

National Labor Relations Act, 29 U.S.C. §141, et seq.

(including Public Law 93-360) 3, 4, 6,7, 9,

11, 12,13

New York Labor Relations Act §705(2) 2

Other:

Sen. Rep. No. 93-766, 98rd Cong., 2d Sess. 3 (1974),

2 [1974] U.S. Cong. & Ad. News 3946, 3948 _...... §=13

CN EE

' In THE

Supreme Court of the United States

Octoser Term, 1978

No.

—>—

Loca. 144, Hore, Hosprrat, Nursine Home anp

Auuiep Heats Services Union, SEIU, AFL-CIO,

Petitioner,

—Y <=

Tue Lone Istanp Cotiece Hospirat,

and

NationaL Lasor Reiations Boarp,

Respondents.*

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the judgment and decision of the United States Court of

Appeals for the Second Circuit dated November 17, 1977.

Opinions Below

The opinion of the United States Court of Appeals for

the Second Circuit is unofficially reported at 96 LRRM

3119 (1977) [App. A 1-28].** The decision and order of

*The American Hospital Association appeared amicus curiae

before the Court of Appeals.

** Refers to Appendix of this petition.

the National Labor Relations Board, reviewed by the Court

of Appeals, is reported at 228 NLRB No. 13 (1976) [App.

B 1-23].

Jurisdiction

The judgment of the United States Court of Appeals for

the Second Circuit was entered on November 17, 1977.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§ 1254(1).

Questions Presented for Review

1. Whether the National Labor Relations Board could

grant comity to a New York State Labor Relations Board

unit determination finding a hospital maintenance unit ap-

propriate for purposes of collective bargaining.

2. Whether, regardless of the means by which it con-

cludes that a hospital maintenance unit is appropriate, the

National Labor Relations Board may certify a collective

bargaining representative based on the results of an elec-

tion already conducted by the New York State Labor Rela-

tions Board.

Statutes Involved

Section 705(2) of the New York Labor Relations Act

provides:

“The board [SLRB] shall decide in each case

whether, in order to insure to employees the full bene-

fit of their right to self-organization, to collective bar-

gaining and otherwise to effectuate the policies of this

article, the unit appropriate for the purposes of collec-

tive bargaining shall be the employer unit, multiple

employer unit, craft unit, plant unit, or any other unit;

provided, however, that in any case where the maderity

of employees of a particular craft, or in the case of a

non-profitmaking hospital or residential care center

where the majority of employees of a particular pro-

fession or craft, shall so decide the board shall desig-

nate such profession or craft as a unit appropriate for

the purpose of collective bargaining.”

Section 9(b) of the National Labor Relations Act, 29

U.S.C. § 159(b), provides, in pertinent part:

“The Board [NLRB] shall decide in each case

whether, in order to assure to employees the fullest

freedom in exercising the rights guaranteed by this

subchapter, tiie unit appropriate for the purposes of

collective bargaining shall be the employer unit, craft

unit, plant unit, or subdivision thereof: Provided

That the Board shall not (1) decide that any unit is

appropriate for such purposes if such unit includes

both professional employees and employees who are

not professional employees unless a majority of such

professional employees vote for inclusion in such unit:

or (2) decide that any crafi unit is inappropriate for

such purposes on the ground that a different unit has

been established by a prior Board determination, un-

less a majority of the employees in the proposed craft

unit vote against separate representation ... .”

Statement of the Case

On July 1, 1963, Local 144, Hotel, Hospital, Nursing

Home and Allied Health Services Union, SEIU, AFL-CIO

(“Local 144”) filed a petition with the New York State

Labor Relations Board (“SLRB”) seeking certification as

the collective bargaining representative of the service and

maintenance employees of Long Island College Hospital

(“LICH”). At the time and until 1974, such hospitals were

excluded from the coverage of the National Labor Rela-

tions Act (“NLRA”), 29 U.S.C. $141, et seg. Another

union, the Maintenance Division of the Building and Con-

struction Trades Council (“Maintenance Division”) sub-

sequently filed a petition in the representation proceeding

and sought a unit limited to skilled maintenance employees.

LICH argued for a single overall unit. The SLRB held a

hearing on the issue of appropriate bargaining unit.

In its decision, reported at 27 SLRB 405 (1964), the

SLRB weighed the factors that the maintenance employees

were a homogeneous group of skilled employees having no

interchange with service employees against its policy of

avoiding over-compartmentalization of hospitals into nu-

merous small bargaining units and found that the consid-

erations were evenly balanced. Accordingly, the SLRB

concluded that it would ascertain, by a self-determination

election, the desires of the skilled maintenance employees

as to whether they preferred to belong to a separate unit

or to a larger unit including the service employees.

The SLRB then directed an election in which service

employees were asked whether or not they desired to be

represented by Local 144. The maintenance employees

were asked to vote on three questions: (1) whether they

wanted & Separate unit of maintenance employees only;

(2) if there were a separate unit, whether they desired to

be represented by Local 144, the Maintenance Division. or

neither ; (3) if there were a combined unit of service ae

maintenance employees, whether they desired to be repre-

sented by Local 144. After the vote, the SLRB was to

proceed as follows: If the majority of the answers to the

first question were affirmative, it would find a separate

maintenance unit to be appropriate and tally the votes of

those employees on the second question, disregarding the

third question. In that event, the SLRB would find a sep-

arate unit of service employees appropriate and tally the

votes of those employees. On the other hand, if the ma-

jority of the voters did not answer the first question af-

firmatively, the SLRB would find a combined unit of ser-

vice and maintenance employees to be appropriate. In that

event, it would mingle the ballots of the service employees

with those of the maintenance employees, tallying the votes

of the maintenance employees on the third question and

those of the service employees.

Upon a tally of the ballots, a majority of the ballots cast

by the maintenance employees on the first question favored

a separate maintenance unit. On the second question, a

majority favored Local 144. The service employees vated

against union representation. On December 28, 1964, after

due consideration of LICH’s objections to the daition the

SLRB certified Local 144 as the representative of the

maintenance employees.

LICH refused to bargain with Local 144, contending,

among other things, that the unit was inappropriate. Local

144 then attempted to invoke Section 716 of the New York

Labor Relations Act, which provided for mediation, fact-

finding and arbitration of disputes between unions and

non-profit hospitals. LICH sought to enjoin this procedure

as an improper remedy, and ultimately prevailed. Long

Island College Hospital v. Catherwood, 23 N.Y.2d 20 (1968),

appeal dismissed, 394 U.S. 716 (1969). Then Local 144 filed

an unfair labor practice charge with the SLRB. At the

hearing, LICH contested the appropriateness of the unit.

The SLRB ruled in favor of Local 144, which decision was

upheld. Long Island College H ospital v. New York SLRB,

32 N.Y. 2d 314 (1973), cert. denied, 415 U.S. 997 (1974).

LICH thereupon entered into negotiations with Local

144, noting that it was bargaining without prejudice to

its position that the unit was inappropriate. On August 25,

1974, the NLRA was amended to include non-profit hos-

pitals within its coverage. Public Law 93-360. The amend-

ment pre-empted further state action in that area. In

August 1975, LICH abruptly discontinued negotiating with

Local 144 upon learning of a decision by the Regional Di-

rector of NLRB Region 2 which, in LICH’s view, supported

its position. Local 144 then filed a refusal to bargain charge

with the NLRB, which charge again permitted LICH to

test the appropriateness of the unit. On December 31,

1975, the Regional Director of Region 2 issued a complaint.

A hearing was held before an Administrative Law Judge

(“ALJ”) in which testimony was taken on present condi-

tion at LICH as it related to the appropriateness of the

maintenance unit.

The ALJ ruled on June 4, 1976 that the SLRB certifica-

tion should be honored, quoting the NLRB’s statement in

Memorial Hospital of Roxborough, 220 NLRB 402 (1975)

to the effect that the NLRB will:

“[R]ecognize the results of an election conducted by

a responsible state agency, and therefore extend comity

to a certification issued pursuant to such an election,

where the state agency’s election procedures conform

to due-process requirements and effectuate the policies

of the Act.” (at 403)

The ALJ concluded that the conditions for comity were

satisfied, held that LICH had violated §$$8(a)(1) and (5)

of the NLRA, 29 U.S.C. §§158(a)(1) and (5), and recom-

mended a bargaining order and a broad cease and desist

order. LICH then filed exceptions to the ALJ’s decision.

On October 18, 1976, while this matter was pending be-

fore the NLRB, the United States Court of Appeals for

the Third Cireuit decided Memorial Hospital of Roxbor-

ough v. National Labor Relations Board, 545 F. 2d 351 (3d

Cir. 1976). That case held that rather than extending com-

ity to a state agency’s unit determination, the NLRB was

required to exercise its own discretion in determining the

appropriateness of a bargaining unit, especially in light

of the legislative history of the amendment to the NLRA

regarding non-profit hospitals.

In its decision and order dated February 9, 1977, the

NLRB affirmed the ALJ in all respects and adopted his

recommended order. In footnote 2 to its decision, the

NLBB stated as follows:

“With all due respect for the views expressed by

the Court of Appeals for the Third Circuit in its opin-

ion in Memorial Hospital of Roxborough v. N.L.R.B.,

93 LRRM 2571, 79 LC 711,692 (1976), we respectfully

adhere to the Board majority’s opinion in that case,

reported at 220 NLRB No. 73 (1975), until such time

as the Supreme Court shall have passed on the matter.”

LICH then proceeded to petition the Court of Appeals

for review of the NLRB’s decision and order and the

NLRB cross-petitioned for enforcement. Local 144 subse-

quently intervened and The American Hospital Associa-

tion was granted leave to appear amicus curiae.

In its decision dated November 17, 1977, the Court of

Appeals discussed the majority and dissenting opinions

of the Third Circuit in Roxberough, supra, but felt that it

did not need to choose between the two. Rather, the Court

of Appeals concluded that its function was to determine,

assuming that comity was a doctrine that could be applied,

whether the state decision at issue was precisely congruent

with federal policy. After examination of the state and

federal statutes involved, the Court of Appeals found that

in light of the legislative history of the 1974 amendment

to the NLRA, a significant difference in state and federal

policy existed sufficient to defeat application of the comity

doctrine. Furthermore, the existence of conflicting NLRB

decisions on the subject of the appropriateness of hospital

maintenance units made the application of comity even

more unsuitable.

In considering the proper disposition of the proceeding,

the Court oi Appeals concluded that the NLRB would have

to hold a new election if it found the maintenance unit to

be appropriate. However long the presumption of majority

status might run in the ordinary case of an NLRB certified

election, that presumption would be considered attenuated

thirteen years after a state agency conducted election.

Hence, the Court of Appeals granted LICH’s petition to

review to the extent of vacating the NLRB’s order, direct-

ing it to make its own determination of an appropriate

bargaining unit and thereupon hold a representation elec-

tion. The cross-petition to enforce the NLRB’s order was

denied.

* Reasons for Granting the Writ

A. The Decision of the Court of Appeals Enunciates

a Test for the Application of the Comity Doctrine

Which Conflicts with Tests Applied by Other

Circuits.

The Court of Appeals decision below continually prem-

ised its discussion of the propriety of applying the comity

doctrine on the assumption that the NLRB might permis-

sibly extend comity to a state agency unit determination

in some cases. This assumption, albeit made hesitatingly,

creates an immediate conflict in principle with the rationale

of the majority opinion of the Third Circuit in Roxborough,

supra.

The Third Circuit plainly concluded that by granting

comity to a state agency unit determination, the NLRB

_ acted outside its authority. The underpinning of this con-

clusion was the language of Section 9(b) of the NLRA, 29

U.S.C. §159(b), which the Third Circuit quoted as follows:

“(t]he Board shall decide in each case whether, in

order to assure to employees the fullest freedom in

exercising the rights guaranteed by this Act, the unit

appropriate for the purposes of collective bargaining

shall be the employer unit, craft unit, plant unit, or

subdivision thereof... .” [Court’s emphasis] (at 360)

The Third Circuit thus interpreted the statute to com-

mand the NLRB to exercise its discretion as to an ap-

propriate unit in each and every case, “This responsi-

bility can neither be delegated to nor discharged by a state

agency where Congress has sought to create a national

labor policy by vesting this discretion in a national board.”

Id., at 360.

The rationale of the Third Circuit is sharply at odds

with the reasoning of the Court of Appeals, which nowhere

concludes that the NLRB was forbidden to accept a state

agency unit determination. Indeed, rather than summarily

rejecting the NLRB’s extension of comity to the SLRB

unit determination, which the Court of Appeals would

seemingly have had to do if it were following the Third

Circuit, the Court of Appeals viewed its role as one of

exercising great care “to make sure that the state deci-

sion at issue was precisely ‘congruent with federal policy’ ”.

96 LRRM at 3124, quoting the last phrase from the Roz-

borough dissent, supra, at 363.

Perhaps the conflict in principle between the Roxborough

decision and the Court of Appeals decision below is best

underscored by the latter’s reaction to the Third Circuit’s

majority and dissenting opinions, which was simply as

follows:

“We are not here required to choose between these two

able opinions.”

(96 LRRM at 3124)

Although the Roxborough decision and the Court of Ap-

peals decision below reach somewhat similar results, they

are based on differing theories. Furthermore, the two deci-

sions proposed different remedies. Only the Court of Ap-

peals decision below precluded a possible certification based

on the state agency conducted election. Instead of resolv-

ing the question of comity as it relates to unit determina-

tions, the two decisions engender more uncertainty, which

should be rectified by this Court.

There is a further conflict in principle between the Court

of Appeals decision and the decision of the Eighth Circuit

in St. Joseph’s Hospital v. National Labor Relations Board,

542 F. 2d 495 (8th Cir. 1976), enforcing, 221 NLRB 1253

(1975). By virtue of its memorandum opinion granting

enforcement, the Eighth Circuit tacitly approved the

NLRB’s test for applying comity, which was described as

follows:

“... [I]t is not a touchstone of comity that the

procedures and policies of a state agency be identical

to those of the Board. All that is required is that

the state proceedings violate neither due process nor

the specific mandates of the Act.”

(221 NLRB at 1253)

In contrast, the Court of Appeals erroneously applied a

stricter test for extending comity, a test requiring a pre-

cise congruency with federal policy. Comity would be re-

jected not merely in cases of clear conflict between state

and federal policy, but also in cases of significant differ-

ence in state and federal policy. Thus, the Circuits do not

even agree on the criteria for extending comity to state

agency determinations.

B. The Decision of the Court of Appeals, by Applying

a Restrictive Test for Extending Comity, Is Con-

trary to Decisions of the NLRB, Fostering a Lack of

Uniformity in the Administration of the NLRA.

The National Labor Relations Board is charged with the

administration of the NLRA. It has recognized the doc-

trine of comity most recently expressed in St. Joseph’s

Hospital, supra, in a variety of circumstances. See, e.g.

Cornell University, 183 NLRB 329 (1970); Screen Print

Corporation, 151 NLRB 1266 (1965) ; The West Indian Co.,

Ltd., 129 NLRB 1203 (1961); Bluefield Produce & Provt-

sion Company, 117 NLRB 1660 (1957).

In Roxborough Memorial Hospital, supra, the NLRB

applied the doctrine of comity to a determination of the

Pennsylvania Labor Relations Board finding a hospital

maintenance unit appropriate. Although the NLRB order

was denied enforcement by the Third Circuit, the NLRB’s

decision and order in this matter states that it declines

to follow the holding of the Third Circuit and will continue

to adhere to its own ruling in Roxborough until the issue

is reviewed by this Court.

With the Circuits disagreeing in principle on the pro-

priety of the NLRB granting comity to state agency unit

determinations and the NLRB expressing its position that

it intends to continue applying the elements of comity as

in the past, a significant probability of further uncertainty

of the law in this area will continue to exist absent a deter-

mination by this Court. Other Circuits may well give con-

siderable weight to the NLRB’s interpretation of the

NLRA, thereby adding to the list of differing decisions. Cf.

National Labor Relations Board v. Hearst Publications, 322

U.S. 111 (1944).

The administration of the NLRA, in light of the exist-

ence of court review on questions of law, cannot help but

be hindered by the lack of uniformly applied principles. Re-

view by this Court is therefore necessary to assure uni-

formity of decision on a significant issue of federal admin-

istrative practice.

C. The Decision of the Court of Appeals Raises Matters

of Recurring Importance Regarding the Application

of the 1974 Amendment to the NLRA.

The coverage of non-profit hospitals under the NLRA

by virtue of the 1974 amendment thereto has affected

some one and a half million employees. See Sen. Rep. No.

93-766, 93rd Cong., 2d Sess. 3 (1974), 2 [1974] U.S. Cong.

& Ad. News 3946, 3948. The wide-ranging effects of the

issue involved in this matter prompted The American Hos-

pital Association, comprised of over seven thousand health

care institutions, to request and obtain leave to appear as

amicus curiae before both the Third Circuit in Roxborough

and the Court of Appeals below.

The American Hospital Association characterized the

matter at issue as transcending the interests of the par-

ticular parties involved. Petitioner heartily agrees. The

NLRA amendment is less than four years old. As discussed

herein, several key decisions on the comity issue have

already been decided which demonstrate an evident un-

certainty over the appropriate treatment of pre-amendment

state agency unit determinations. The matter at issue

requires a uniform federal policy, one which can be effec-

tuated only by this Court’s review of the questions pre-

sented.

CONCLUSION

For all the foregoing reasons, this petition for a writ of

certiorari should be granted.

Respectfully submitted,

SHELDON ENNGELHARD

VuaDEck, Eias, ViLaDECK, ZIMNY

& EnceHarp, P.C.

Attorneys for Petitioner

1501 Broadway

New York, New York 10036

(212) 354-8330

Rosert L. Javvtis

Of Counsel

February 1978

Appendices

APPENDIX A

Opinion of the United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

Nos. 99, 100—September Term, 1977.

(Argued September 23,1977 Decided November 17, 1977.)

Docket Nos. 77-4083, 77-4099

THE Lone Isuanp CoLiece Hosprrtat,

Petitioner,

Vv.

Nationa Lapor Reuations Boar,

Respondent,

and

Locat 144, Hore, HospiraL, Nursinc Home anp

Auuiep Services Union, SEIU, AFL-CIO,

Respondent-Intervenor.

Before:

Frienp.y, Smita and Mutiaean,

Circwt Judges.

Petition to review and cross-petition to enforce an order

of the National Labor Relations Board, 228 NLRB No. 13

(1977), finding that petitioner, the Long Island College

Hospital, had unlawfully refused to bargain with a union

certified by the New York State Labor Relations Board as

representing its plant maintenance and engineering de-

partment employees.

Petition to review granted; petition to enforce denied.

Martin D. Heyert, Esq., New York, N.Y. (Kel-

ley Drye & Warren, Esqs., and Roger J.

Karlebach, Esq., of Counsel), for Peti-

tioner.

AuLison W. Brown, Jr., Deputy Assistant Gen-

eral Counsel (John S. Irving, General

Counsel; John E. Higgins, Jr., Deputy Gen-

eral Counsel; Carl L. Taylor, Associate

General Counsel; Elliott Moore, Deputy As-

sociate General Counsel; Madge F. Jeffer-

son, Attorney, National Labor Relations

Board, Washington, D.C., of Counsel), for

Respondent.

Everett E. Lewis, Esq., New York, N.Y. (Vla-

deck, Elias, Vladeck & Lewis, Esqs., New

York, N.Y., of Counsel), for Respondent-

Interve.ror.

SONNENSCHEIN Caruin Nath & RosEnTHAL,

Esqs., Chicago, Ill. (Richard L. Epstein,

Esq., and K. Bruce Stickler, Esq., Chicago,

Ill., of Counsel), for The American Hospi-

tal Association, Amicus Curiae.

FRIENDLY, Circuit Judge:

This case has a long history; therein lies much of its

difficulty. Before us are a petition for review and a cross-

petition to enforce an order of the National Labor Rela-

tions Board (the NLRB or the Board) finding that Long

Island College Hospital (LICH), a non-profit hospital, had

violated §§ (8)(a) (5) and (1) of the National Labor Re-

lations Act (NLRA), by refusing to bargain with Local

144, Hotel, Hospital, Nursing Home and Allied Services

Union, SEIU, AFL-CIO (the Union). The New York State

Labor Relations Board (SLRB), on December 28, 1964,

certified the Union as the exclusive collective bargaining

representative of

All full time and regular part time employees in the

maintenance of plant and engineering department (ex-

cluding chief engineers, assistant chief engineers,

maintenance supervisor and clerk) ....

See 34 SLRB 324, 336 (1971). The refusal to bargain is

conceded. At issue is the propriety of the Board’s recog-

nizing the 13-year old certification by the SLRB, rather

than making its own unit determination and conducting an

election. In pursuing this course the Board expressly de-

clined to follow the decision of a divided panel in Memo-

rial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3

Cir. 1976), which was rendered after the decision of the

Administrative Law Judge (ALJ) in this case.

The Prior Proceedings

The case has its origin in a petition filed by the Union

on July 1, 1963, with the SLRB, seeking certification as

the exclusive collective bargaining representative for all

of LICH’s service and maintenance employees. New York

had recently brought non-profit hospitals in cities having

a population of a million or more within its labor relations

law, 1963 N.Y. Laws ch. 515; at that time such hospitals

were excluded from coverage by the NLRA. Another union,

the Maintenance Division of the Building and Construction

Trades Council (Maintenance Division) sought a unit lim-

ited to skilled employees in the maintenance of plant and

engineering departments. LICH contended for a single

overall] unit, excluding only supervisory, professional and

confidential employees.

Dealing with the dispute between the Maintenance Divi-

sion and the Union, which then argued the opposite of the

position with respect to the appropriate unit which it was

to take later, the SLRB said, 27 SLRB 405, 411 (1964):

In a number of cases, where no claim of represen-

tation had been made for a separate unit of skilled

engineering maintenance department employees, we

have found a combined service and maintenance unit

to be appropriate. But where a separate unit of skilled

maintenance employees has been sought, we fonnd

weighty considerations both for, and opposed to, the

establishment of such a separate unit. Thus, in Wyckoff

Heights Hospital, 27 SLRB No. 18, we stated:

“On the one hand, they are a homogeneous group of

skilled employees having relatively higher earnings

and no interchange with the service employees, as

well as a history of bargaining in, and Board deci-

sions establishing, = parate units of skilled build-

ing maintenance employees in non-hospital cases.

On the other hand, there is our policy against over-

compartmentalization of hospitals into numerous

small bargaining units, and prior Board decisions

(uncontested, to be sure) finding maintenance and

service units appropriate in hospitals, as well as

some history of bargaining in the hospital industry

whereby the maintenance employees have been in-

cluded in the same unit as the service employees.

We find that these factors are equally balanced.

Under these circumstances, especially the fact, that

the engineer-maintenance employees perform types

of services identified with traditional trades and

crafts, we believe that the as yet unexpressed desires

of these employees should be determinative. Ac-

cordingly, as we have done in similar situations,

we shall ascertain, by a self-determination election,

the desires of the engineer maintenance employees

as to whether they prefer to bargain in a separate

unit, or in a larger unit including the service em-

ployees.”

Nothing in the present record warrants a different

determination here.

The SLRB directed an election in which service employees

were furnished a ballot asking whether or not they desired

to be represented by Local 144 but maintenance of plant

and engineering department employees were asked to vote

on three questions:

1. Do you want a separate bargaining unit limited

only to maintenance of plant and engineering de-

partment employees? (to be answered “Yes” or

“No”)

2. If there is a separate unit of maintenance of plant

and engineering department employees, do you then

desire to be represented for the purposes of col-

lective bargaining by Maintenance Division, or by

Local 144, or by neither?

3. If there is a combined unit of maintenance of plant

and engineering department employees and service

employees, do you then desire to be represented

for the purposes of collective bargaining by Local

144? (to be answered “Yes” or “No”)

27 SLRB at 415-16.’

Forty-seven out of 55 eligible maintenance employees

voted. Twenty-one voted in favor of a separate main-

tenance unit, five voted against it, one ballot was chal-

1 The SLRB detailed that its further course would be as follows:

If a majority of the answers to Question “1” are affirmative,

we shall find a separate maintenance of plant and engineering

department unit to be appropriate, and shall tally the votes of

these employees on Question “2”, disregarding Question “3”.

In that event, we shall also find a separate unit of service em-

ployees to be appropriate, and shall tally the votes of the

service employees in that unit.

On the other hand, if a majority of these voters do not an-

swer Question “1” affirmatively, we shall then find a combined

unit of service employees and maintenance of plant and engi-

neering department employees to be appropriate. In that

event, we shall mingle the ballots of the maintenance of plant

and engineering department employees with the ballots of the

service employees, tallying the votes of the plant and engi-

neering department employees on Question “3”, and the votes

of the service employees.** Only one overall total will be given,

and we shall not separately report the results of the service

and of the maintenance of plant and engineering department

employees.

27 SLRB at 416. While the SLRB procedure obviously had the

effect of denying the service employees any vote on whether they

preferred one unit or two, this would also be true under the some-

what different procedures long followed by the NLRB in similar

cases, see Globe Machine and Stamping Co., 3 NLRB 294, 300

(1937) ; Court Square Press, Inc., 151 NLRB 861, 865-66 (1965).

lenged and 20 ballots were left blank. On the second ques-

' tion, 24 employees voted for the Union, four voted for the

Maintenance Division, 16 voted “neither”, two voters left

the question blank and one was challenged. The service

employees voted 151-309 against the Union. Over objec-

tions by LICH unnecessary here to detail, the SLRB on

December 28, 1964, certified the Union as the representa-

tive of the maintenance and engineering employees.

When LICH refused to bargain, the Union, instead of

filing an unfair labor practice charge under the New York

Labor Relations Act, invoked a section of that statute pro-

viding for mediation, fact-finding and arbitration of dis-

putes between non-profit hospitals and unions. LICH

sought to enjoin this action as an improper remedy and

finally prevailed, Long Island College Hospital v. Cather-

wood, 23-N.Y.2d 20, 294 N.Y.S.2d 697 (1968), appeal dis-

missed, 394 U.S. 716 (1969). Some six months after the

decision of the New York Court of Appeals the Union

filed an unfair labor practi ¢ charge before the SLRB. A

hearing was held in which LICH contested both the appro-

priate bargaining unit and the conduct of the election. The

SLRB ruled against LICH and was ultimately sustained,

Long Island College Hospital v. New York SLRB, 32 N.Y.

2d 314, 345 N.Y.S.2d 449 (1973), cert. denied, 415 U.S. 957

(1974).

LICH thereupon entered into negotiations with the

Union, although persisting in its contention that the unit

was inappropriate. In August 1975 it discontinued nego-

tiations on that ground. Meanwhile, on August 25, 1974,

the NLRA had been amended to include non-profit hos-

pitals, Public Law 93-360, 88 Stat. 395. The Union then

filed a refusal to bargain charge with the Regional Direc-

tor of the NLRB, who issued a complaint. An ALJ con-

ducted a hearing where extensive evidence was taken with

regard to existing conditions relevant to the appropriate-

ness of a bargaining unit limited to maintenance and en-

gineering employees and excluding service employees.

Stating that “[t]he principal issue herein is the effect

to be given” to the SLRB certification, the ALJ ruled that

the certificate should be honored. He quoted the NLRB’s

statement in the Memorial Hospital of Roxborough case,

supra, 220 NLRB at 403 (1975), that it “will recognize the

results of an election conducted by a responsible state

agency, and therefore extend comity to a certification

issued pursuant to such an election, where the state

agency’s election procedures conform to due process re-

quirements and effectuate the policies of the Act.” After

reviewing LICH’s contentions, he found these conditions

to have been satisfied, held that LICH had violated $4 8(a)

(5) and (1), and recommended a bargaining order and a

broad cease and desist order. LICH having filed excep-

tions, a three member panel of the NLRB, declining to

follow the Third Circuit’s intervening ruling in the Roz-

borough Hospital case, supra, 545 F.2d 351, adopted the

ALJ’s recommendations, 228 NLRB No. 13 (1977). LICH

petitioned for review and the NLRB has cross-petitioned

for enforcement.

The Legislative History of

the 1974 Amendment

Before proceeding further, it will be useful to set out

relevant portions of the legislative history of the 1974

amendment bringing non-profit hospitals within the cover-

age of the NLRA. The amendment stemmed from a belief

that, as stated in the Senate Report, there was “no accept-

able reason why 1,427,012 employees of . . . non-profit, non-

' public hospitals, representing 56% of all hospital em-

ployees, should continue to be excluded from the cover-

age and protections of the Act.” Sen. Rep. No. 93-766, 93d

Cong., 2d Sess. 3 (1974), 2 [1974] U.S. Code Cong. & Ad.

News 3946, 3948, Legislative History of the Coverage of

Nonprofit Hospitals under the National Labor Relations

Act, 1974 at 10 [hereinafter Legis. Hist.] The report con-

tinued in language that had also been contained in the

House Report under the heading “Bargaining Units”:

Due consideration should be given by the Board to

preventing proliferation of bargaining units in the

health care industry. In this connection, the Commit-

tee notes with approval the recent Board decisions in

Four Seasons Nursing Center, 208 NLRB No. 50, 85

LRRM 1093 (1974), and Woodland Park Hospital, 205

NLRB No. 144, 84 LRRM 1075 (1973), as well as the

trend toward broader units enunciated in Extendicare

of West Virginia, 203 NLRB No. 170, 83 LRRM 1242

(1973).?

Id. at 5, U.S. Code Cong. & Ad. News at 3950, Legis. Hist.,

supra, at 12; H.R. Rep. 93-1051, 938d Cong., 2d Sess. 6-7

(1974), Legis. Hist., supra, at 274-75.

Senator Williams, chairman of the Senate Committee

that had drafted the amendment elaborated upon this on

the Senate floor:

... The National Labor Relations Board has shown

good judgment in establishing appropriate units for

the purposes of collective bargaining, particularly in

By our reference to Extendicare, we do not necessarily

approve all of the holdings of that decision.

A 10

wrestling with units [in] newly covered industries.

While the Board has, as a rule, tended to avoid an un-

necessary proliferation of collective bargaining units,

sometimes circumstances require that there be a num-

ber of bargaining units among nonsupervisory em-

ployees, particularly where there is such a history in

the area or a notable disparity of interests between

employees in different job classifications.

While the committee clearly intends that the Board

give due consideration to its admonition to avoid an

undue proliferation of units in the health care indus-

try, it did not within this framework intend to preclude

the Board acting in the public interest from exercising

its specialized experience and expert knowledge in de-

termining appropriate bargaining units. (NLRB v.

Delaware-New Jersey Ferry Co., 128 F.2d 130 (3d Cir.

1942)).

120 Cong. Ree. S. 12104 (July 10, 1974) ; Legis. Hist., supra,

at 363. Senator Taft, who had introduced a bill, S. 2292,

that would have limited the NLRB to designating only four

appropriate units in health care institutions, to wit, units

of professional employees, technical erployees, clerical

employees, and service and maintenance employees, stated

in accepting the Committee’s compromise:

“T believe this is a sound approach and a construc-

tive compromise, as the Board should be permitted

some flexibility in unit determination cases. I can-

* The “extension” section of the Congressional Record for July

22, subsequent to adoption of the Conference Report by the House,

reports a similar statement as part of a “Speech of Honorable

Frank Thompson in the House of Representatives, July 11, 1974.”

120 Cong. Rec. E4899.

All

not stress enough, however, the importance of great

caution being exercised by the Board in reviewing unit

eases in this area. Unwarranted unit fragmentation

leading to jurisdictional disputes and work stoppages

must be prevented.

“The administrative problems from a practical oper-

ational viewpoint and labor relation viewpoint must be

considered by the Board on this issue. Health-care

institutions must not be permitted to go the route of

other industries, particularly the construction trades,

in this regard.

“In analyzing the issue of bargaining units, the

Board should also consider the issue of the cost of

medical care. Undue unit proliferation must not be

permitted to create wage ‘leapfrogging’ and ‘whip-

sawing’. The cost of medical care in this country has

already skyrocketed, and costs must be maintained at

a reasonable level to permit adequate health care for

Americans from all economic sectors.”

120 Cong. Rec. S6940-41 (May 2, 1974), Legis. Hist., supra,

at 114.

A final relevant bit of legislative history is the rejection

by both houses of Congress co. amendments that would have

preserved certain state labor laws from preemption by the

new national law. 120 Cong. Rec. S6991 (May 2, 1973)

(Senator Mondale); 120 Cong. Rec. H4597-99 (May 30,

1974) (Represenfative Quie), Legis. Hist., supra, at 315-22.

Opponents of these amendments stressed the need for a

national approach and the problems of having collective

bargaining in different states governed by different laws.

See 120 Cong. Rec. H4598 (May 30, 1974), Legis. Hist.,

Al2

supra, at 317 (Congressman Thompson); 120 Cong. Ree.

$6942 (May 2, 1974), Legis. Hist., supra, at 117-18 (Senator

Taft). When the Conference Report was being debated,

Representative Quie of Minnesota, one of the House man-

agers who had sponsored the non-preemption amendment

which the House had defeated, engaged in the following

discussion with Representative Thompson of New Jersey,

also a manager on the part of the House:

“Mr. Quie.... [WJhat is the application of the legisla-

tion on hospitals and unions presently engaged in bar-

gaining under State laws, or even where no law, State

or Federal, had previously applied to them?

“Mr. Thompson of New Jersey. To attempt to answer

your questions, it seems that those hospitals presently

engaged in bargaining will have to meet the require-

ments of the National Labor Relations Act when this

legislation becomes effective. For instance, had a

hospital recognized a minority union, it is contem-

placed that the hospital could no longer continue

recognition. [t would seem the better practice that if

either party questioned the validity of the recognition

or the appropriate unit, they should file a representa-

tion petition with the N’ °B.”

120 Cong. Rec. H6393 (July 11, 1974), Legis. Hist., supra,

at 388 (emphasis added). It should be noted, however, that

while Congress rejected a special cession of jurisdiction

amendment applicable to non-profit hospitals, there was

recognition that §10(a) of the NLRA would continue to

apply. As Representative Thompson stated in response

to a further question from Representative Quie:

A13

The NLRA in section 10(a) empowers the Board to

cede to any State agency jurisdiction over cases in

any industry unless the Board determines the state

statute is inconsistent with the corresponding pro-

vision of the NLRA.... As a matter of fact, I would

urge the Board . . . to exercise its authority ... to cede

jurisdiction to the respective State agencies . . . over

disputes involving non-profit hospital employees if it

determines that a State law is substantially equivalent

to the Federal law. ...” Jd. See also 120 Cong. Rec.

$6943 (May 2, 1974), Legis. Hist., supra, at 117 (ex-

change between Senators Mondale and Taft).

Discussion

Our discussion naturally begins with the Third Circuit’s

decision in Memorial Hospital of Roxborough v. NLRB,

545 F.2d 351. Judge Garth’s opinion for the majority, con-

sisting of Judge Aldisert and himself, starts off from the

language of 49(b) of the NLRA:

The Board shall decide in each case whether, in

order to assure to employees the fullest freedom in

exercising the rights guaranteed by [this Act], the

unit appropriate for purposes of collective bargain-

ing shall be the employer unit, craft unit, plant unit,

or subdivision thereof... . |

He proceeds to summarize the law on judicial review of

NLREB unit determination, to wit, that such a determination

“involves of necessity a large measure of discretion and

the decision of the Board, if not final, is rarely to be dis-

turbed,” Packard Motor Car Co. v. NLRB, 330 U.S. 458,

491 (1947). However, “[w]hen the Beard so exercises the

discretion given to it by Congress, it must ‘disclose the basis

Alé4

of its order’ and ‘give clear indication that it has exercised

the discretion with which Congress empowered it,’” NLRB

v. Metropolitan Life Jns. Co., 380 U.S. 488, 443 (1965),

quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197

(1941), and it remains for the courts to insure that the

exercise of the Board’s discretion is not “so unreasonable

and arbitrary as to exceed the Board’s power,” Packard

Motor Car Co. v. NLRB, supra, 330 U.S. at 491. See Allied

Chemical & Alkali Workers v. Pittsburgh Plate Glass Co.,

404 U.S. 157, 171-72 (1971).

Judge Garth concluded that, in view of the language of

§9(b) and these and other Supreme Court decisions, the

Board could not lawfully abdicate to a state agency the

exercise of its discretion as to the appropriate unit. He

distinguished the three Board cases which the NLRB had

cited in support of its application of comity in its Roz-

borough decision and upon which the ALJ in the instant

ease relied, as having involved, not the recognition of a

state board’s determination of an appropriate unit but

rather of state conducted elections where the parties did

not dispute the appropriateness of the unit.* Section 9(a),

’The cases are Bluefield Produce & Provision Co., 117 NLRB

1660 (1957); West Indian Co., 129 NLRB 1203 (1961); Screen

Print Corp., 151 NLRB 1266 (1965). Our only caveat relates to

West Indian Co., supra, 129 NLRB 1203, where the dissent stated

that “in this case the appellant contends .. . that the unit was

arbitrarily determined.” 129 NLRB at 1204. However, there is no

elaboration of what aspect of the determination was allegedly arbi-

trary. Moreover, there apparently was no unit appropriateness

dispute in the original state election and the majority opinion men-

tions no such dispute before the NLRB.

The distinction drawn by Judge Garth is equally applicable to

another case cited by the Board in Roxborough, Cornell University,

185 NLRB 329, 334 (1970) where unit appropriateness was “vir-

tually” stipulated to by the parties and also applies to the two

eases relied upon in Bluefield itself, Olin Mathieson Chemical Corp.,

A 15

Judge Garth pointed out, does not require a Board super-

vised election in order to determine majority status; it

speaks rather of “[rjepresentatives designated or selected

for the purposes of collective bargaining by the majority

of the employees in a unit appropriate for such purposes.

...” As state-supervised elections provide one mechanism

for such designation or selection, extending comity to a

state-supervised election would not be inconsistent with

the NLRA. In Judge Garth’s view, however, the language

of §9(b) required a different result for the issue of unit

appropriateness. After again quoting that section’s lan-

guage, he concluded, 545 F.2d at 360:

Thus the statute requires the Board to exercise its

discretion as to an appropriate unit in each and every

ease. This responsibility can neither be delegated to

nor discharged by a state agency where Congress has

sought to create a national labor policy by vesting this

discretion in a national board. La Crosse Telephone

Corp. v. Wisconsin Employment Relations Board, 336

U.S. 18, 24-27, 69 S.Ct. 379, 93 L.Ed. 463 (1948). Here,

however, the Board abdicated its required duty by

115 NLRB 1501 (1956) and 7-H Products Co., 113 NLRB 1246

(1955). Thus, the only NLRB decisions which do appear to in-

volve the application of comity in disputed unit appropriateness

eases occurred after the Board’s opinion in Roxborough: St.

Joseph’s Hospital, 221 NLRB 1253 (1975) and Mercy-Memorial

Hospital Corp., 221 NLRB 1 (1975), enforcement pending, NLRB

v. Mercy-Memorial Hospital Corp. (6 Cir.) (No. 76-2338). Finally,

none of the court cases cited to us by the Board approved use of

comity in a disputed unit appropriateness case. See Western Meat

Packing Co., 350 F.2d 804 (10 Cir. 1965) ; Intaleo Aluminum Corp.

v. NLRB, 417 F.2d 36, 40 (9 Cir. 1969) ; NLRB v. St. Luke’s Hos-

pital Center, 551 F.2d 476 (2 Cir. 1976) (affirming an NLRB

decision not to recognize a state-certified unit on grounds of com-

ity) ; Getreu v. Bartenders & Hotel & Restaurant Employees Union,

181 F.Supp. 738, 741 (N.D. Ind. 1960) ; Methodist Hospital Corp.

v. New York SLRB, 382 F. Supp. 459 (SDNY 1974).

Al6

accepting the PLRB determination without exercising

its own mandated discretion. In so doing the Board

“overstep|ped] the law.” Packard Motor Car Co. v.

NLRB, supra, 330 U.S. at 491, 67 S.Ct. 789.

Further support for this conclusion was found in the legis-

lative history of the 1974 amendments to which we have

referred.

Chief Judge Seitz dissented. Conceding that the unit

determination must be made by the NLRB, he did not

think the statute “necessarily preclude(s) the Board from

relying on other processes of law, as long as it can assert

a sound policy for doing so.” In Roxborough, “|bjefore

according comity, it reviewed the PLRB [Pennsylvania

Labor Relations Board] proceedings and satisfied itself

that they were in accord with due process standards and

the policies embodied in the NLRA.” In his view, when

“(fjaced with the need to implement a national! policy in

an area hitherto left to state regulation, the Board could

reasonably conclude that according comity to those state

labor board decisions which are congruent with federal

policy would best serve the purposes of the NLRA,” 545

F.2d at 362-65.

We are not here required to choose between these two

able opinions. Even if it were to be assumed, for purposes

of argument only, that we might take the dissent’s view

that the NLRB may sometimes apply “comity” to state unit

determinations, great care must be exercised to make sure

that the state decision at issue was precisely “congruent

with federal policy.” 545 F.2d at 363. There was insuffi-

cient basis for so concluding here.

Neither the NLRB nor the Union suggests that the

Board was required by principles of res judicata to respect

Al7

the 1964 certification of the SLRB. Any such contention

- would fly in the face of the language of §9(b). Rather the

Board and the Union contend that the Board was author-

ized, as a matter of “comity,” to treat the SLRB’s 1964 de-

termination of an appropriate unit and consequent certifi-

cation of the Union as if these had been its own.

“Comity” is a notion of highly uncertain content. The

Board refers us to the statement in Mast, Foos & Co. v.

Stover Mfg. Co., 177 U.S. 485, 488-89 (1900), that

Comity is not a rule of law, but one of practice, con-

venience and expediency ... (which) has a substantial

value in securing uniformity of decision, and discourag-

ing repeated litigation of the same question .. . its

obligation is not imperative .... Comity persuades;

but it does not command. It declares not how a case

shall be decided but how it may with propriety be

decided.

The statement, however, was made in a far different con-

text, namely, the extent io which one federal court of ap-

peals should feel itself bound by the decision of another

with respect to the validity and scope of a patent. Both

courts were governed by the same law and the statement

was made in deprecating the appellant’s-claim that the

second court of appeals had given insufficient weight to

“comity”. More enlightening for this case, although not

dispositive, is this court’s recent statement in NURB v.

St. Luke’s Hospital, 551 F.2d 476 (1976). There we upheld

a finding that an employer had engaged in an unfair labor

practice by enforcing the union security clause in a collec-

tive bargaining agreement with a union certified by the

SLRB to represent a unit which could not have been ap-

proved by the NLRB because of the “professional” proviso

A118

in §9(b)(1). Rejecting the employer’s claim to comity,

Chief Judge Kaufman said, id. at 482 (citations omitted):

Arrangements resulting from state agency proceed-

ings should generally be respected if consistent with

federal policies. “Comity” in this sense reflects the

desirability of supporting settled relationships in the

absence of compelling countervailing reasons. It is

clear, however, that the NLRB is not required to defer

to state proceedings where federal policy would be

undermined.

We would strengthen the last sentence to say “is not re-

quired or permitted.” Moreover, at least with the back-

ground afforded by the legislative history of the 1974

amendments bringing non-profit hospitals within the

NLRB’s jurisdiction, a significant difference in state and

federal policy, even though falling short of the clear con-

flict present in the St. Luke’s Hospital case, should suffice

to defeat application of the “comity” doctrine to a state

unit determination. Cf. NLRB v. Committee of Interns

and Residents, Docket No. 77-6075, slip opinions 6077,

6088-89 (2 Cir. Sept. 21, 1977). It is not enough that, as

said by the ALJ, the state and federal statutes “are not

inimical”—a view echoing the Board’s earlier statement in

St. Joseph's Hospital, 221 NURB 1253 (1975) :

it is not a touchstone of comity that the procedures

and policies of a state agency be identical to those of

the Board. All that is required is that the state pro-

ceedings violate neither due process nor the specific

mandates of the Act.

On their face § 705(2) of the New York Labor Relations

Act and $9(b) of the NLRA are significantly different.

Section 705(2) provides:

A19

2. The board shall decide in each case whether, in

order to insure to employees the full benefit of their

right to self-organization, to collective bargaining and

otherwise to effectuate the policies of this articlo, the

unit appropriate for the purposes of collective bar-

gaining shall be the employer unit, multiple employer

unit, craft unit, plant unit, or any other unit; provided,

however, that in any case where the majority of em-

ployees of a particular craft, or in the case of a non-

profitmaking hospital or residential care center where

the majority of employees of a particwar profession

or craft, shall so decide the board shall designate such

profession or craft as a unit appropriate for the pur-

pose of collective bargaining. (emphasis added).

The proviso, which gives the majority of a craft an abso-

lute right to mandate the craft’s designation as an appro-

priate unit is by no means the same as the second proviso

to §$9(b), that the Board shall not

(2) decide that any craft unit is inappropriate for

such purposes on the ground that a different unit has

been established by a prior Board determination, un-

less a majority of the employees in the proposed craft

unit vote against separate representation ....

On the facts of this case the majority of any craft at LICH

could have compelled the SLRB to designate it as an ap-

propriate unit; no such compulsion could have been exer-

cised on the NLRB under the second proviso to § 9(b) if it

had decided to act on its own after it had acquired jurisdic-

tion. Moreover, such compulsion to establish craft units

runs counter to the 1974 legislative history stressing the

dangers of overcompartmentalization in the health care

industry.

A 20

The Board and the Union contend that despite the facial

differences which they ignore or deprecate, these were of

no moment in the instant case. No group of LICH’s main-

tenance and engineering employees actually alleged craft

status under the proviso in § 705(2) of the New York Act.

Moreover, to show an identity of policy, we are pointed to

the statement of the SLRB, quoted above, enunciating a

policy “against overcompartmentalization of hospitals into

smal] bargaining units,” Long Island College Hospital,

supra, 27 SLRB 405, 411, quoting Wyckoff Heights Hos-

pital, 27 SLRB 75, 82 (1964), and to the following extract

from the opinion of the New York Court of Appeals, 32

N.Y.2d at 32 N.Y.S.2d at 455 (citations omitted):

Without merit is the hospital’s argument that the

unit selected may improperly fragment the hospital

into numerous small units. Not only does the statute

not preclude “fragmentation” but it declares that, in

establishing an appropriate unit, the guide is that the

board “insure to employees the full benefit of their

right to self-organization, to collective bargaining and

otherwise * * * effectuate the policies of this article”

(Labor Law, § 705, subd. 2). This is accomplished at

times by establishing a small bargaining unit limited

to those employees who constitute a homogeneous

group and desire the benefits of collective bargaining.

. .. Actually, the board’s practice in allowing skilled

maintenance employees in hospitals to form a separate

bargaining unit if they wish to do so, far from con-

stituting overcompartmentalization, has avoided more

serious fragmentation into numerous smaller units

since, under the mandatory craft unit provision of

subdivision 2 of section 705, each skilled craft, such as

a I

A 21

plumbers, painters and carpenters, could have de-

manded and could have been included in a separate

unit.

These statements do show that the SLRB gave weight to

the policy “against overcompartmentalization”. But they

show also that the SLRB decided as it did in light of the

fact—indeed “especially the fact”—that in its view “the

engineer-maintenance employees perform types of services

identified with the traditional trades and crafts,” 27 SLRB

at 411; see also id. at 410, whose desires, if expressed, could

have forced the SLRB into still further compartmentaliza-

tion. This is particularly the thrust of the last sentence of

the extract from the opinion of the New York Court of

Appeals. In contrast the NLRB, in making an initial unit

determination for LICH, would not have had to be worried

about demands of a majority of a craft for designation of

the craft as a separate unit; it would have been able to

make its own determination, free from any such concern.

Counsel for the Board argues that, despite the lack of

any such compulsion as stems from the proviso to the New

York statute, the NLRB could have reached the same re-

sult, both on the evidence before the SLRB and that before

the ALJ, as the SLRB did here. But neither counsel nor

the Board said it would have reached that result, for the

excellent reason that no one really knows how the Board

would decide any case in this area of the law. In the fifteen

post-amendment non-profit hospital cases cited to us, the

Board rejected maintenance-only units (as opposed to

larger maintenance and service units) eleven times

(Shriners Hospital, 217 NLRB 806 (1975); Metropolitan

Hospital, 223 NLRB 282 (1976) ; Jewish Hospital Associa-

tion of Cincinnati, 223 NLRB 614 (1976); Riverside Meth-

A 22

odist Hospital, 223 NLRB 1084 (1976); Baptist Memorial

Hospital, 224 NLRB 199 (1976); St. Joseph’s Hospital, 224

NLRB 270 (1976) ; Greater Bakersfield Memorial Hospital,

226 NLRB No. 143 (1976) ; Sutter Community Hospitals of

Sacramento, Inc., 227 NLRB No. 18 (1976); Anaheim Me-

morial Hospital Association, 227 NLRB No. 25 (1976);

Northeastern Hospital, 230 NLRB No. 162 (1977); Peter

Bent Brigham Hospital, 231 NLRB No. 132 (1977)), and

approved them only four times (Sinai Hospital of Detroit,

Inc., 226 NLRB No. 61 (1976); Eskaton American River

Health Care Center, 225 NLRB 755 (1976); West Surbur-

ban Hospital, 224 NLRB 1349 (1976) ; St. Francis Hospital

Medical Center, 223 NLRB 1451 (1976)). See also Hebrew

Rehabilitation Center for the Aged, 230 NLRB No. 35

(1977) (approving maintenance only unit, rather than

maintenance and service unit, in a “health care institution

operating as a center for the care of aged people.”) How-

ever, the picture is not so favorable to LICH as these raw

figures would indicate.

With commendable candor, counsel for the NLRB ex-

plained to us that there had been a serious difference of

opinion among Board members on the question of certify-

ing hospital maintenance and engineering units without

service employees. Agreement does exist on such generali-

ties as that

Section 9(b) of the National Labor Relations Act

gives the National Labor Relations Board the authority

to define bargaining units and indicates that the

Board’s purpose in making unit determinations should

be “to assure to employees the fullest freedom in exer-

cising the rights guaranteed by [the National Labor

Relations Act].”

A 23

Barnert Memorial Hospital Center, 217 NLRB 775, 776

(1975), and that

As we have recognized and continue to recognize, 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 avoid-

ance of undue proliferation. 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.

Congress was aware™that the Board has sometimes

found that a separate maintenance unit is appropriate

if the maintenance employees possess a community of

interest sufficiently separate and distinct... to warrant

...aseparate 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 combined with service employees into a

single unit.

Jewish Hospital of Cincinnati, supra, 223 NLRB at 616.‘

See Riverside Methodist Hospital, supra, 223 NLRB 1084;

‘We agree with this conclusion. Moreover, the preamendment

NLRB health care cases cited favorably in the legislative history

of the 1974 amendment do not call for a different result. Two of

the three cases are not determinative of the skilled maintenance

unit issue, as they involved NLRB rejection of seven narrower

units than those at issue here. See Woodland Park Hospital, 205

NLRB 888 (1973) (X-Ray technicians); Four Seasons Nursing

Center, 208 NLRB 403 (1974) (2-man unskilled maintenance unit).

In the third case, Extendicare of West Virginia, Inc., 203 NLRB

1232 (1973), the union sought three separate units—for licensed

practical nurses (LPN’s), technical employees, and service and

maintenance employees. The employer contended that the only

appropriate unit was a single all-employee unit. The NLRB ap-

A 24

Sinai Hospital of Detroit, supra, 226 NLRB No. 61. There

is agreement also that in determining the existence of a

“sufficiently separate and distinct” community of interest,

the Board will look to “such factors as mutuality of interest

in wages and hours, commonality of supervision, skills and

functions, infrequency of contact with other employees,

lack of interchange and functional integration, and area

practice and pattern of bargaining.” Eskaton American

River Healthcare Center, supra, 225 NLRB at 756. How-

ever, there have been wide differences of opinion as to what

several of these phrases mean in the particular context

created by Congress’ expressions against proliferation of

units in the health care industry. Members Penello and

Walther were of the view that in such cases a more rigid

standard than that applied in other industries should gov-

ern the appropriateness of separate maintenance units in

hospitals, one that

can be met when the unit sought ... is composed of

licensed craftsmen engaged in traditional craft work,

which is performed in a separate and distinct location

apart from other employees in the health care unit.

St. Vincent’s Hospital, 223 NLRB 638, 639 (1976). In con-

trast, Members Fanning and Murphy appear to require

little more than the separate community of interest show-

proved 1) a separate LPN unit, and 2) a service and maintenance

unit including technicals but excluding office clericals. As the

issue of a separate maintenance-only unit was not before the Board,

Extendicare did not raise the same issue as the instant case.

Moreover, while the legislative history clearly approved Woodland

Park and Four Seasons, its reference to Extendicare was obscure

at best: “We do not necessarily approve all of the holdings of

that decision.” Sen. Rep. No. 93-766, 93d Cong., 2d Sess. 5 (1974),

Legis. Hist., supra, at 12; H.R. Rep. No. 93-1051, 93d Cong., 2d

Sess. 6-7 (1974), Legis. Hist., supra, at 274-75.

A 25

ing found sufficient in other contexts. See, e.g., Riverside

Methodist Hospital, 223 NLRB 1084, 1087 (1976). In addi-

tion to the differences over the content of these legal con-

cepts the cited opinions demonstrate that Board members

draw widely divergent factual conclusions in the same cases.

With its own opinions in such disarray, it was peculiarly

inappropriate for the Board to avoid a decision here by

deferring to the dated certification of a state agency when

there was at least some risk that the difference in the state

statute might have affected the state agency’s ruling—even

if we were to assume, contrary to the majority opinion in

Roxborough, swpra, 545 F.2d 351, that in some cases this

might be permissible. As said in La Crosse Telephone

Corp. v. Wisconsin Employment Relations Board, 336 U.S.

18, 26 (1949) :

A certification by a state board under a different or

conflicting theory of representation may therefore be

as readily disruptive of the practice under the federal

act as if the orders of the two boards made a head-on

collision.

We add as a makeweight that insofar as one of the justifica-

tions for “comity” is judicial or administrative economy, it

served little purpose here, where the ALJ felt compelled

to conduct a hearing on existing conditions at LICH sub-

stantially as extensive as would have been held on a new

petition for certification under 29 C.F.R. $4 102.63 and .64.°

5 We do not think it profitable to engage in lengthy discussion of

decisions, notably Raley’s Supermarkets, 148 NLRB 256 (1963),

where the Board has “deferred” to the awards of arbitrators in

“accretion” cases. See NLRB v. Horn & Hardart Co., 439 F.2d

674, 679 (2 Cir. 1971). The Board seems to have become rather

disenchanted with Raley’s. See, e.g., Woolwich, Inc., 185 NLRB

783 (1970); Patterson-Sargent Division of Textron, Inc., 173

NLRB 1290 (1968); Beacon Photo Service, Inc., 163 NLRB 706

A 26

There remains a question concerning the proper dis-

position of this proceeding. The Roxborough court re-

manded the case to the Board, 545 F.2d at 362. It recog-

nized, as we do, that “the Board may, in the proper exer-

cise of its discretion, reach the same result” as the state

agency had done. It seemed to assume, however, that if

the Board also made sufficient findings, either by scrutiny

of the record before the state agency or by its own inquiry,

that the hospital’s objections to the conduct of the election

were unfounded, the Board might, without more, issue an

order holding that the hospital had unfairly refused to

bargain. The question is whether, if the Board should find

the separate bargaining unit to be appropriate, a new

election must be held or the Board may rely on the results

of the election held in 1964 should it conclude that LICH’s

objections to that election are without merit.

If the facts here were similar to those in Roxborough,

we might well follow the course taken in that case. There

the election was held in the fall of 1973, the court’s decision

was rendered only some three years later, and there would

be good reason to believe that a union that had obtained a

majority three years earlier was still the representative

(1967) ; Combustion Engineering Inc., 195 NLRB 909 (1972) ;

and particularly Hershey Foods Corp., 208 NLRB 452, enforced

memorandum (3 Cir. 1974) (not reported officially), where the

Board affirmed the rulings of its ALJ, who had noted that the

Raley’s case “preceded the line of cases cited above in which the

Board had declined to defer to arbitral awards where accretion is

in issue. The later cases must thus be deemed to supersede Raley’s

... if regarded as inconsistent therewith.” Jd. at 457. Although

the Supreme Court noted Raley’s with apparent approval in Carey

v. Westinghouse Electric Corp., 375 U.S. 261, 270 n.1 (1964), it

made clear that the deference to arbitration in unit cases was not

to be a blind one, 375 U.S. at 272; and ultimately the Board de-

clined to defer to the arbitrator’s findings ia that very case, West-

inghouse Electric Corp., 162 NLRB 768 (167).

A 27

“designated or selected by the majority of the employees

in a unit appropriate for such purposes,” §9(a). Here the

interval is 13 years and only 8 of the 55 employees who

were in the unit in 1963 are still members of the present

unit of 69. This is particularly significant as the SLRB’s

original certification was explicitly granted only “for the

period of one year ... from the completion of . . . judicial

review. .. .” of that order, a period which has already

passed. 34 SLRB 324, 337. We are well aware of the

decisions that even after the expiration of the one year

during which an NLRB certification is conclusive, the union

retains a rebuttable presumption of majority status, e.g.,

NLRB vy. Frick Co., 423 F.2d 1327, 1330 (3 Cir. 1970);

Terrell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4 Cir.

1970), cert. denied, 398 U.S. 929; N.L.R.B. v. Washington

Manor, Inc., 519 F.2d 750, 751 (6 Cir. 1975). But here we

have held that the NLRB was not justified in accepting

the SLRB’s certification as its own but must make its own

determination of an appropriate unit on the basis of exist-

ing employment conditions. However long the majority

presumption may run in the ordinary case of a Board-

certified election, that presumption must be considered

attenuated thirteen years after an election not run under

Board auspices. It would seem wholly inconsistent with

the mandate of §9(b) “to assure to employees the fullest

freedom in exercising the rights guaranteed” by the NLRB

for the Board to deprive them of an election because of the

vote taken by a New York Board in 1964. If the Union in

fact enjoys the degree of support claimed at argument, it

should have no hesitation in submitting to the polls.

The cross-petition to enforce is denied; the petition to

review is granted to the extent of vacating the Board’s

A 28

order, directing it to make its own determination of an

appropriate bargaining unit on the evidence adduced be-

fore the ALJ and such further evidence, if any, as it deems

appropriate, and thereupon to hold a representation

election.

APPENDIX B

Decision and Order of the National Labor

Relations Board

MFJ

228 NLRB No. 13 D-2137

New York, N. Y.

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 29—CA—4562

THe Lone Istanp Cotiece Hosprrat,

—and—

Locan 144, Hotei, Hosprran Nursinc Home anp ALLIED

Services Union, Service Empioyvees INTERNATIONAL

Union, AFL-CIO.

Decision AND ORDER

On June 4, 1976, Administrative Law Judge Michael O.

Miller issued the attached Decision in this proceeding.

Thereafter, Respondent filed exceptions and a supporting

brief.

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this proceed-

ing to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and brief and has de-

cided to affirm the rulings, findings, and conclusions* of the

Administrative Law Judge and to adopt his recommended

Order.

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Admin-

istrative Law Judge and hereby orders that the Respon-

dent, The Long Island College Hospital, New York, New

York, its officers, agents, successors, and assigns, shall take

the action set forth in the said recommended Order.

Dated, Washington, D.C. February 9, 1977

Howard Jenkins, Jr., Member

NationaL Laspor Revations Boarp

(Sear)

? Respondent’s request for oral argument is hereby denied, inas-

much as the record, the exceptions, and the brief adequately pre-

sent the issues and the positions of the parties.

* With all due respect for the views expressed by the Court of

Appeals for the Third Circuit in its — in Memorial Hospital

of Roxborough v. N.L.R.B., 93 LRRM 2571, 79 LC § 11,692 (1976),

we respectfully adhere to the Board majority’s opinion in that

case, reported at 220 NLRB No. 73 (1975), until such time as the

Supreme Court shall have passed on the matter.

J D-355-76

Brooklyn, NY

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Division OF JUDGES

Case No. 29-CA-4562

—

Tue Lone Istanp CoLiece HosprraL

and

Locat 144, Horet, Hosprra, Nursinc Home anp ALLIED

Services Union, Service Empioyees INTERNATIONAL

Union, AFL-CIO

———

Jory H. Friepman, Esg., of Brooklyn, NY,

for the General Counsel.

Keviey, Daye & Warren, New York, NY,

by Martin D. Heyer, Esq., and

Rocer J. Kar.esacn, Esq.,

for the Respondent.

Vuiaveck, Exias, Viapeck & Lewis, of New York, NY,

by Tuomas KitHEnny, Esq.,

for the Charging Party.

DECISION

STATEMENT OF THE CASE

MicHaet O. Mitier, Administrative Law Judge: A hear-

ing in this matter was held before me in Brooklyn, New

York, on March 9 and 10, 1976 based upon a charge filed

by Local 144, Hotel, Hospital Nursing Home and Allied

Services Union, Service Employees International Union,

AFL-CIO, herein the Union, on September 8, 1975, and a

complaint issued by the Regional Director of Region 29 of

the National Labor Relations Board on December 31, 1975.

The complaint alleged that the Long Island College Hos-

pital, herein Respondent, has refused to meet or bargain

with the Uaion in violation of Section 8(a)(5) and (1) of

the National Labor Relations Act, herein the Act. Respon-

dent timely filed an answer to the complaint, admitting

certain facts, denying the commission of the alleged unfair

labor practices and setting forth its affirmative defenses.

Briefs have been filed by General Counsel, Respondent and

the Union.

Based upon the entire record in this case,’ including the

briefs and oral arguments of counsel and my observation

of the witnesses and their demeanor, I make the following:

Fiypinecs or Fact

I. ResPponpENT’s Business

Respondent, a New York corporation, is engaged in the

operation of a not-for-profit hospital, providing hospital,

health care and related services in New York, New York.

The complaint alleged and Respondent admitted that dur-

ing the past year, a representative period, Respondent de-

rived in excess of $250,000 in gross revenues from its

operations and purchased and caused to be transported to

its New York location goods and materials valued in ex-

cess of $50,000, in interstate commerce, directly from

* Respondent’s unopposed motion to correct the trenscript is

granted.

States of the United States other than the State of New

York. The complaint alleged, Respondent admitted, and

I find that Respondent is an employer engaged in com-

merce within the meaning of Section 2(2), (6) and (7) of

the Act.

Il. Tue Union’s Lasor OrcanizaTion Stratus

The complaint alleged, Respondent admitted and I find

that the Union is a labor organization within the meaning

of Section 2(5) of the Act.

Ill. Tae Unram Lasor Practices

A. The Issues and Chronology of Events*

The principal issue herein is the effect to be given to a

Certification of Representative issued by the New York

State Labor Relations Board, herein the SLRB. That cer-

tification issued in 1964, but because of protracted litiga-

tion, resulted in little collective bargaining and did not

bring to fruition a contractualized collective-bargaining

relationship. Respondent’s affirmative defenses questioned

the effect on the continuance of the bargaining obligation

of changes in Respondent’s location, operations and unit

composition.

On December 28, 1964, the SLRB certified the Union as

the exclusive collective-bargaining representative of Re-

spondent’s employees in the following unit :*

?The facts as set forth in this Chronology are not in dispute.

They are based upon admissions, stipulations and reported admin-

istrative agency and court decisions of which I have taken judicial

notice, pursuant to the requests of the parties.

® The election upon which the certification was based had been

conducted on July 22, 1964 upon an SLRB Direction of Election

which had issued July 6, 1964 (27 N.Y. SLRB 405). The ballot

All full-time and regular part-time employees in the

maintenance of plant and engineering department, ex-

cluding chief engineers, assistant chief engineers, clerk

and maintenance supervisor, [and all supervisors as

defined in Section 2(11) of the Act.]

Respondent refused to bargain with the Union, contending,

inter alia, that the unit was inappropriate.

At this point, as it was subsequently determined, the

Union chose an inappropriate avenue of review. It invoked

Section 716 of the State Labor Relations Act, which pro-

vided for mediation, fact-finding and binding arbitration

of “disputes” between nonprofitmaking hospitals and

unions. The State Industrial Commissioner appointed a

fact-finding commission and, when that commission’s rec-

ommendations were rejected by Respondent, sent the con-

troversy to arbitration before the New York State Board

of Mediation. Respondent sought to enjoin both the fact-

finding and the arbitration.

On November 7, 1968, the New York Court of Appeals,

in College Hospital v. Catherwood, 23 N.Y. 2d 20, 69 LRRM

2605 (hereinafter referred to as College Hospiial, No. I)

upheld Respondent’s contention that resort to Section 716

was inappropriate, concluding the “disputes” as defined in

that section did not include representation issues. The

Union, it found, should have followed “the traditional pro-

afforded the employees in this unit the following choices for self-

determination: separate unit status, representation by the Union

in such a separate unit, or, if no separate unit was selected, repre-

sentation by the Union in an overall service employee unit. The

employees chose union representation in the separate unit. In a

unit of approximately 55 employees, 44 employees cast valid ballots.

The Union receives a majority—24. The employees in the larger

service unit, voting on the same day, rejected representation.

cedure by filing an unfair labor practice charge under

Section 704(6) [State Labor Relations Act] against the

hospital for its refusal to bargain collectively with the rep-

resentatives of the employees—a procedure which...

would have enabled the hospita] judicially to challenge the-

finding of an unfair labor practice as well as the Labor

Board’s certification of the union as exclusive representa-

tive for maintenance employees.” The Union’s appeal from

this decision was dismissed. Ottley et al., of Local 144,

Hospital d Allied Service Employees International Union,

AFL-CIO v. Long Island College Hospital, 394 U.S. 716,

70 LRRM 3378 (1969).

Respondent, on May 13, 1969, moved before the SLRB to

vacate the certification as stale and unenforceable due to

the passage of time and changes in the composition of the

unit. The SLRB denied the motion.

In accord with the decision of the New York Court of

Appeals, the Union, on May 7, 1969, filed its unfair labor

practice charge against Respondent, alleging a refusal to

bargain under the State Labor Rel«tions Act, Section

704(6). A complaint issued. As subsequently and succinct-

ly related by the New York Court of Appeals (College Hos-

pital v. N.Y. Labor Board, 32 N.Y. 2d 314, 85 LRRM 2580

(1973) hereinafter referred to as College Hospital No. II):

At the [SLRB] hearing which followed, the hospital

not only attacked the board’s original certification

order of 1964, determining that the skilled maintenance

workers constituted an appropriate bargaining unit,

but interposed new matters concerning, among other

things, alleged improprieties in the conduct of the

election. After thorough consideration of these issues,

the board adhered to its earlier decision and entered

an order, dated June 30, 1971, which directed the hos-

pital to cease and desist from refusing to bargain with

Local 144 and extended its certification for one year

from the date of its order or from the completion of

any judicial review of that order.‘

On Respondent’s appeal of the SLRB’s Order, the Appel-

late Division of the New York Supreme Court (39 A.D. 2d

913, 80 LRRM 2375) while upholding the SLRB’s unit de-

termination and its use of a self-determination election pro-

cedure, annulled the board’s Order and directed a new

election upon certain of the hospital’s objections to the

conduct of the election. The Court of Appeals in College

Hospital, No. Il, supra, reversed, finding:

The Appellate Division was eminently correct insofar

as it affirmed the board’s determination that the hos-

pital’s skilled maintenance employees constituted an

appropriate bargaining unit... .

Accordingly, the board’s practice, resulting in the es-

tablishment of a separate bargaining unit of skilled

maintenance employees, seems eminently proper and,

certainly, may not be stamped as either arbitrary or

capricious.

Nor, in our view is there any valid basis for the hos-

pital’s attack on the conduct to the election. . . . (85

LRRM 2581, 2582)

The SLRB bargaining order was reinstated and enforced.

Respondent’s Petition for a Writ of Certiorari was denied

* Respondent had excepted to the earlier adverse findings of the

SLRB Trial Examiner. It had also moved to reopen the hearing

and for reconsideration of that latter motion upon its denial.

by the United States Supreme Court on March 4, 1974, 415

U.S. 957.

Respondent thereupon entered into negotiations with the

Union, nearly a decade after the certification first issued.

It continued to maintain its position at these negotiations

that the unit was inappropriate. Negotiations continued

until mid-August 1975, at which time Respondent refused

to bargain further, contending again that the unit was in-

appropriate. During the period of bargaining, on August

25, 1974, the hospital amendments to the National Labor

Relations Act became effective. (Public Law 93-360).

B. Analysis and Conclusions

The Board has long held that it “will recognize the re-

sults of an election conducted by a responsible state agency,

and therefore extend comity to a certification issued pur-

suant to such an election, where the state agency’s election

procedures conform to due process requirements and effec-

tuate the policies of the Act.” Memorial Hospital of Roz-

borough, 220 NLRB No. 73 sl. op. p. 4 (1975) ; Screen Print

Corporation, 151 NLRB 1266 (1965) ; The West Indian Co.,

Ltd., 129 NLRB 1203 (1961); Bluefield Produce & Provi-

sion Company, 117 NLRB 1660 (1957). Respondent asserts

that the instant case does not call for the extension of com-

ity because: the New York Statute is at odds with this Act;

. the unit found appropriate by the SLRB is inimical to the

provisions of the Act in light of the legislative history of

the recent hospital amendments; and, because of the lapse

of time and concommitant changes in the unit since that

certification.°®

’ No contention was made, and in view of the repeated resort to

the courts at all levels, the many hearings and the detailed deci-

sions issued herein, no contention could validly have been made

that Respondent was not accorded due process.

B10

1. Statutory Comparison

Respondent contended that the law applied by the SLRB

in making its 1964 unit finding was so different from the

Act that the application of comity was unwarranted. It

cited, as the material variance, only the following portiowr

of Section 705(2) of the State Act:

(That in any case where the majority of employees of

a particular craft, or in the case of a non-profitmaking

hospital or residential care center where the majority

of employees of a particular profession or craft, shall

so decide the board shall designate such profession or

craft as a unit appropriate for the purpose of collective

bargaining.°

It is clear from a reading of the SLRB Decision, Order

and Direction of Election (The Long Island College Hos-

pital, 27 N.Y. SLRB 405) that the SLRB did not rely upon

(and indeed was able to avoid application of) the afore-

quoted proviso in directing the election herein. Rather, the

SLRB weighed the various factors traditionally considered

by it (and by the NLRB) in reaching unit determinations,

including homogeniety, earnings, interchange and history of

collective bargaining, against its policy of avoiding “over-

compartmentalization of hospitals into numerous small bar-

gaining units” and found the factors to be evenly balanced.

*The portion quoted by Respondent is the proviso to the follow-

ing statutory provision :

[705] 2. The board shall decide in each case whether, in order

to insure employees the full benefit of their right to self-

organization, to collective bargaining and otherwise to effec-

tuate the policies of this article, the unit appropriate for the

purposes of collective bargaining shall be the employer unit,

multiple employer unit, craft unit, plant unit, or any other

unit; provided however... .

Bll

It thereupon, in a manner comparable to the NLRB in The

Globe Machine and Stamping Co., 3 NLRB 294, 299-300

(1937), determined to allow the balance to be tipped by the

desires of the employees involved.

. . Evinrude Motors Division of Outboard Marine and Manu-

facturing Company, 66 NLRB 1142 (1946) and Wilson-

Hurd Mfg. Co., 68 NURB 853 (1946), relied upon by Re-

spondent (even assuming they represent the Board’s pres-

ent policy in regard to comity) are inapposite. In those

cases the key factor was the State agency’s lack of discre-

tion in regard to the conduct of a separate craft election.

In the instant case, the SLRB’s direction of a self-deter-

mination election in the maintenance and engineering de-

partment was entirely an exercise of its reasoned discre-

tion. That discretion was exercised only after general and

specific hearings were held by the SLRB on the unit ques-

tion. See College Hospital No. Il, supra, 85 LRRM at 2582.

Additionally, in both Evinrude and Wilson-Hurd, the State

agency had directed craft elections after petitions for same

had been dismissed by National Labor Relations Board

Regional Directors, at times when the NLRB had jurisdic-

tion, and in the face of existing and viable collective-bar-

gaining relationships on broader bases.

Similarly inapposite are those cases relied upon by Re-

spondent, (Maloclm X Center for Mental Health, 222 NLRB

No. 147 (1976), Mental Health Center of Boulder County,

Inc., 222 NLRB No. 146 (1976) and St. Luke’s Hospital

Center, 221 NLRB No. 217 (1976)) wherein the Board re-

fused to give comity to State agency unit determinations

which, on their face were at variance with express statutory

provisions, i.e., they included professional and nonprofes-

sional employees in a single unit without the self-deter-

B12

mination election required to be accorded professionals

under Section 9(b)(1) of the Act. No such violation of ex-

press statutory mandate is involved herein.

Finally, I would note in this regard that Section 705(2)

of the New York Statute is essentially identical to Section |

9(b) of the Federal Act and the provisos to both provisions

express similar concerns.’ Both seek to protect professional

employees and skilled craft employees from undesired in-

clusion in units comprised of persons of different interests,

training, education and skills.

I therefore conclude that such differences as may exist

between the National Labor Relations Act and the New

York State Labor Relations Act do not render comity un-

warranted. The statutes generally and as applied by the

SLREB in this case are not inimical.

2. Unit Proliferation

It is true, as contended by Respondent, that the legisla-

tive history of the hospital amendments admonishes the

Board to avoid undue proliferation of bargaining units in

° pam 9(b)(1) and (2) of the National Labor Relations Act

reads:

[Sec. 9](b) The Board shall decide in each case whether, in

order to assure to employees the fullest freedom in exercising

the rights guaranteed by this Act, the unit appropriate for

the purposes of collective bargaining shall be the employer

unit, craft unit, plant unit, or subdivision thereof: Provided,

That the Board shall not (1) decide that any unit is appro-

priate for such purposes if such unit te & both profes-

sional employees and employees who are not professional em-

ployees unless a majority of such professional employees vote

for inclusion in such unit; or (2) decide that any craft unit

is inappropriate for such purposes on the ground that a dif-

ferent unit has been established by a prior Board determina-

tion, unless a majority of the employees in the proposed craft

unit votes against separate representation. .. .

B13

the health care indusiry.* Respondent contends that the

maintenance-engineering department unit found appropri-

ate herein constitutes such an undue proliferation. How-

ever, as the Board stated in the recent case of Jewish Hos-

pital of Cincinnati, 223 NLRB No. 91 (1976):

. . . Congress left the matter of the determination of

appropriate units to the Board, and the desire for non-

proliferation does not, in our judgment, necessarily

preclude our granting maintenance units in the health

care area. Congress was aware that the Board has

sometimes found that a separate maintenance unit is

appropriate if the maintenance employees possess a

community of interest sufficiently separate and distinct

from the broader community of interest which 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 combined with service employees in a single

unit. (footnotes omitted.)

It is thus clear that the fact that a unit of the maintenance

and engineering department is involved herein does not, of

itself, warrant a rejection of the principle of comity. In-

deed, it was just such a unit, Maintenance Department or

-Maintenance-Plant Operations, involving employees fulfill-

ing the same work responsibilities as those herein, which

was involved in Memorial Hospital of Roxborough, supra.

The Board therein extended comity entirely upon the Penn-

sylvania Labor Relations Board’s determination of all elee-

®§. Rept. 93-766, 93rd Cong., 2d sess. 5 (1974) ; See also H. Rept.

93-1051, 93rd Cong., 2d sess. 7 (1974) ; Mercy Hospitals of Sacra-

mento, 217 NLRB No. 131 (1975).

B14

tion issues, without further discussion of either unit ap-

propriateness or unit proliferation.

Moreover, as noted supra, the SLRB early-on adopted a

policy, similar to that expressed in the legislative history

to the recent amendments, “against over-compartmentali-

zation of hospitals into numerous small bargaining units,”

(Matter of Wyckoff Heights Hospital, 27 N.Y. SLRB 75,

82-83) and specifically applied that policy to the direction

of election in the instant case. Long Island College Hos-

pital 27 N.Y. SLRB 405, 411. As the New York Court of

Appeals pointed out:

Without merit is the hospital’s argument that the

unit selected may improperly fragment the hospital

into numerous small units. . . . Actually, the board’s

practice in allowing skilled maintenance employees in

hospitals to form a separate bargaining unit if they

wish to do so, far from constituting over-compart-

mentalization, has avoided more serious fragmentation

into numerous smaller units since, under the manda-

tory craft unit provision of subdivision 2 of section 705,

each skilled craft, such as plumbers, painters and car-

penters, could have demanded and could have been in-

cluded in a separate unit. College Hospital No. II,

supra, 85 LRRM at 2582.

3. The Lapse of Time

The Board, in Memorial Hospital of Roxborough, supra,

reiterated its well settled rule “that in the absence of newly

discovered or previously unavailable evidence or special

circumstances a respondent in a proceeding alleging a vio-

lation of Section 8(a)(5) of the Act is not entitled to re-

litigate issues which were or could have been litigated in

B15

a prior representation proceeding.” Respondent does not

appear to rely upon any contention of newly discovered or

previously unaveilable evidence. It does, however, contend

that the Union’s responsibility for the lapse of time be-

tween the certification and the commencement of bargain-

ing was a special circumstance which warranted relitigation

and reconsideration of the unit determination. As previ-

ously noted, the Union initially chose an inappropriate

avenue to challenge Respondent’s refusal to bargain. The

delay occasioned by its choice, from certification in Decem-

ber 1964 until the initial Court of Appeals decision in No-

vember 1968, caused that Court to place responsibility for

the delay upon the Union. However, the Court also noted

in a footnote to that comment that delay occurs whenever

parties resort to the courts for the final adjudication of

their disputes. College Hospital No. I, supra, 69 LRRM at

2609 fn. 5. Moreover, the same Court, by the same Judge,

Chief Judge Fuld, in reaching its second decision in this

matter, upholding Respondent’s obligation to bargain,

added:

It is only necessary to add that there is no basis what-

ever for criticism of the union for its asserted delay

in failing to file an unfair labor practice complaint.

... As our court unequivocally stated in the Roosevelt

Hospital case. . . . ‘Delays occasioned by the union’s

exercise of what it reasonably believed to be its right

under the statute [to invoke the mediation, fact-finding

and compulsory arbitration proceedings of section 716]

did not call for a redetermination of its status as a

representative any more than would delays resulting

from the slowness of administrative action or from the

employer’s pursuit of his judicial remedies in seeking

court review of the board’s certification.’

B 16

(College Hospital No. Il, supra, 85 LRRM at 2585).’ To

Chief Judge Fuld’s observations I would add only that the

delay did not cease when the union chose the legally correct

procedure. More time has passed since the Union filed its

unfair labor practice charge than was spent prior thereto

in pursuing what it then deemed to be an appropriate means

for resolving the issues and bringing Respondent to the

bargaining table. .

The contention that the mere passage of time is a suf-

ficient special circumstance to warrant relitigation is simi-

larly without merit. To entertain such a defense would

produce the anomalous result of permitting a Respondent

to benefit from a lapse of time resulting from litigation for

which it was responsible by virtue of its unlawful refusal

to bargain. Holly Farms Poultry Industries, 189 NLRB

663 (1971). See also Spitzer-Akron, Inc., 211 NLRB 114

(1972) and the dissenting opinion by Members Fanning and

Jenkins in George Braun Packing Co., 210 NLRB 1028,

1029 (1974).

Respondent also contended that “the SLRB’s certification

expired on March 4, 1975—one year after the Supreme

Court denied the Hospital’s request to review the New

York Court of Appeals’ bargaining order (415 U.S. 957) —

so that there is nothing to give comity to.” In so arguing,

Respondent has misconceived the nature of a certification

of representative. Certification is not a license which, upon

the mere passage of time, expires as if it were a license to

operate a motor vehicle. Rather, certification is a key

* Respondent emphasized Judge Fuld’s assessment of blame upon

the Union, in College Hospital No. I, in both oral argument —

brief herein. It failed however, to make any references to the

referred-to footnote or to Judge Fuld’s subsequent decision, re-

assessing that responsibility.

B17

which opens a collective-bargaining relationship. That rela-

tionship remains viable until some material circumstance

arises to place the continued existence of that relationship

in question. The passage of time, alone, is, as noted, not

such a material circumstance. See, for example, Ray

Brooks v. N.L.R.B., 348 U.S. 96, 98 (1954); King Radio

Corporation, 208 NLRB 578 (1974), enf’d 510 F. 2d 1154

(C.A. 10, 1975); Laystrom Manufacturing Co., 151 NLRB

1482, 1483 (1965).

4, Changes in Unit Composition

Respondent has contended that changes in the unit com-

position is a special circumstance which warrants a rede-

termination of the unit question. It appears that the em-

ployee complement of the maintenance and engineering

department has grown from approximately 55 in 1964 to

69 in 1976. Approximately 8 of the original 55 remain

employees within this department. Others have assumed

supervisory responsibilities in the department or left.

While Respondent has not asserted, in haec verba, that this

turnover has given rise to a reasonable basis for doubting

the Union’s r «jority, its assertions are equivalent to such

an argument and the principles applicable to a doubt of

majority based on turaover are applicable herein. In Lay-

strom Manufacturing Co., 151 NLRB 1482, 1484 (1965),

_ it was stated:

Employee turnover standing alone does not provide a

reasonable basis for believing that the Union had lost

its majority since the prior election. The Board has

long held that new employees will be presumed to sup-

port a union in the same ratio as those whom they have

replaced.

B18

See also, Washington Manor Nursing Center (South), 211

NLRB 315 (1974) and Washington Manor Nursing Center

(North), 211 NLRB 324 (1974). Both cases were enforced,

N.L.R.B. v. Washington Manor, Inc., —— F. 24 ——, 89

LRRM 3044 (C.A. 6, 1975). Moreover, after the certifica-

tion year, a union enjoys a rebuttable presumption of ma-

jority. No evidence, beyond turnover, has been offered to

rebut that presumption here. N.L.R.B. v. Washington

Manor, Inc., supra. Thus, to the extent that Respondent’s

argument implies a doubt of the Union’s majority status,

it is without merit.

5. Changes in Operations

Respondent has contended that changes in its operations

warrant a redetermination of unit appropriateness. The

record reveals that over the course of years, Respondent

has built or acquired new buildings, terminated operations

of some buildings and moved operations from older to

newer buildings. All of the buildings remain in the same

geographical area. Some equipment has been modernized

and some more sophisticated technology added. As part

of a departmental “reorganization” around 1969 (prior to

enforcement of the SLRB’s order to bargain), specific job

titles for many of the maintenance and engineering depart-

ment employees were eliminated. The work, responsibilities

and contact with employees of other departments, of the

maintenance-engineering employees remained unchanged,

however, and a number of the employees have continued

to this day to perform such specialized and skilled fune-

tions as plumber, electrician and refrigeration mechanic.

At the same time, new supervisory positions within the

department were created, assigning responsibility for par-

B19

ticular maintenance tasks to lower level supervisors. These

supervisors continue to report to a Director of Engineering

who has overall supervision and responsibility for the main-

tenance and engineering department. Such changes do not

materially affect the community of interest of the mainte-

nance and engineering department employees. See Rittling

Corporation, 203 NLRB 355 (1973).

6. Conclusion

As neither the lapse of time nor the aforementioned

changes present special circumstances sufficient to warrant

relitigation of the unit issues as determined by the SLRB,

and as neither the New York Statute nor the SLRB Deci-

sion and Direction of Election provide a basis for the

denial of comity, it is appropriate, under established Board

precendent, that comity be given to the SLRB determina-

tion. Accordingly, I find that the employees in Respon-

dent’s maintenance of plant and engineering department

constitute a unit appropriate for the purpose of collective

bargaining. I conclude that by breaking off negotiations

with the Union in mid-August 1975, because it believed that

unit to be inappropriate for collective bargaining purposes,

Respondent has failed and refused to bargain in good faith

with the Union in violation of Section 8(a)(5) of the Act.

IV. Concuiusions or Law

1. The Long Island College Hospital is an employer

within the meaning of Section 2(6) and (7) of the Act.

2. Local 144, Hospital Nursing Home and Allied Ser-

vices Union, Service Employees International Union, AF'L-

CIO is a labor organization within the meaning of Section

2(5) of the Act.

B 20

3. All full-time and regular part-time employees in the

maintenance of plant and engineering department, exclud-

ing chief engineers, assistant chief engineers, clerk and

maintenance supervisor, and all supervisors as defined in

Section 2(11) of the Act, constitute a unit appropriate for

the purposes of collective bargaining within the meaning

of Section 9(b) of the Act.

4. Since December 28, 1964, the above-named labor or-

ganization has been and is now the certified and exclusive

representative of all employees in the aforesaid appropri-

ate unit for the purposes of collective bargaining within

the meaning of Section 9(a) of the Act.

5. By refusing on or about August 14, 1975, and at all

times thereafter, to bargain collectively with the above-

named labor organization as the exclusive bargaining rep-

resentative of all the employees of Respondent in the ap-

propriate unit, Respondent has engaged in and is engaging

in unfair labor practices within the meaning of Section

8(a)(5) of the Act.

6. By the aforesaid refusal to bargain, Respondent has

interfered with, restrained, and coerced, and is interfering

with, restraining, and coercing, employees in the exercise

of the rights guaranteed to them in Section 7 of the Act,

and thereby has engaged in and is engaging in unfair labor

practices within the meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair labor

practices affecting commerce within the meaning of Sec-

tion 2(6) and (7) of the Act.

B 21

V. Tue Remepy

Having found that Respondent has engaged in certain

unfair labor practices, it will be recommended that it be

ordered to cease and desist therefrom and to take affirma-

tive action to effectuate the policies of the Act.

As Respondent’s violations go to the very heart of the

Act, the recommended Order shall require Respondent to

cease and desist from it any other manner infringing upon

the rights guaranteed to its employees by Section 7 of the

Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536

(C.A. 4, 1941).

Upon the basis of the foregoing findings of fact and con-

clusions of law, and the entire record in this proceeding

and pursuant to Section 10(c) of the Act, I hereby issue

the following recommended :”

ORDER

Respondent, The Long Island College Hospital, its offi-

cers, agents, successors and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively concerning rates of

pay, wages, hours and other terms and conditions of em-

ployment with Local 144, Hotel, Hospital Nursing Home

and Allied Services Union, Service Employees Interna-

-tional Union, AFL-CIO, as the exclusive bargaining repre-

sentative of its employees in the following appropriate unit:

10In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor Rela-

tions Board, the findings, conclusions, and recommended Order

herein shall, as provided in Section 102.48 of the Rules and Regu-

lations, be adopted by the Board and become its findings, conclu-

sions, and Order, and all objections thereto shall be deemed waived

for all purposes.

B 22

All full-time and regular part-time employees in the

maintenance of plant and engineering department, ex-

cluding chief engineers, assistant chief engineers, clerk

and maintenance supervisor, and all supervisors as

defined in Section 2(11) of the Act.

(b) In an other manner interfering with, restraining, or

coercing employees in the exercise of the rights guaranteed

them in Section 7 of the Act.

2. Take the following affirmative action which will effec-

tuate the policies of the Act:

(a) Upon request, bargain with the above-named labor

organization as the exclusive representative of all em-

ployees in the aforesaid appropriate unit with respect to

rates of pay, wages, hours, and other terms and conditions

of employment, and, if an understanding is reached, embody

such understanding in a signed agreement.

(b) Post at The Long Island College Hospital, copies of

the attached notice marked “Appendix.” Copies of said

notice, on forms provided by the Regional Director for

Region 29 after being duly signed by Respondent’s repre-

sentative, shall be posted by Respondent immediately upon

receipt thereof, and be maintained by it for 60 consecutive

days thereafter, in conspicuous places, including all places

where notices to employees are customarily posted. Rea-

In the event the Board’s Order is enforced by a Judgment of

the United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR RE-

LATIONS BOARD.”

B 23

sonable steps shall be taken by Respondent to insure that

said notices are not altered, defaced, or covered by any

other material.

ing, within 20 days from the date of this Order, what steps

have been taken to comply herewith.

Dated, Washington, D.C. Jun 4 1976

/s/ Micuazt O. MILLer

Michael O. Miller

Administrative Law Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.