Memorial Hospital of Roxborough

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