Cedars-Sinai Medical Center

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cedars-Sinai Medical Center and Cedars-Sinai Housestaff Association, Petitioner Case 31-RC- 2983 June 10, 1976 ORDER DENYING MOTION On March 19, 1976, the National Labor Relations Board issued a Decision and Order' in the above- entitled proceeding, finding that interns, residents, and clinical fellows are not employees within the meaning of Section 2(3) of the Act Further, the Board dismissed the petition inasmuch as no ques- tion affecting commerce existed concerning the rep- resentation of employees of the Employer within the meaning of Section 9(c) of the Act Thereafter, on April 9, 1976, the Petitioner filed a motion for reconsideration,2 contending, insofar as the merits of the Decision is concerned, that the Board, inter aha, exceeded its statutory authority in finding that interns, residents, and clinical fellows are not employees within the meaning of the Act, dis- torted or ignored certain record evidence, failed to consider the legislative history of the 1974 health care amendments, and failed to consider whether house- staff members are professional employees within the meaning of Section 2(12) of the Act The Employer submitted a memorandum in opposition to the mo- tion for reconsideration The Board having duly considered the matter, it is hereby ordered that the Petitioner's motion for re- consideration be, and it hereby is, denied on the ground that the matters raised therein were previous- ly considered and rejected by the Board MEMBER WALTHER, concurring In its motion for reconsideration, Cedars-Sinai Housestaff Association, herein the Petitioner, asserts that despite disqualifying myself from participation in St Christopher's Hospital For Children, 223 NLRB 166 (1976), nevertheless by my participating in Ce- dars-Sinai Medical Center, 223 NLRB 251 (1976), there was an improper influence upon the result in the St Christopher's decision To this end the Peti- tioner contends that my participation in the instant decision was disconsonant with proper ethical con- cepts There is no merit in this assertion for the fol- lowing reasons The opinion of United States Supreme Court Jus- tice Rehnquist in the case of Laird, Secretary of De- fense, et al v Tatum, et al, 409 U S 824 (1972), con- ' 223 NLRB 251 (1976) (Member Fanning dissenting) 2 The Physicians National Housestaff Association submitted an amuus curiae memorandum and a supporting document, which we have accepted and considered tams a full statement of the controlling ethics in these matters To put the matter succinctly, the Petitioner's assertions do not withstand application of the stan- dards of properjudicial conduct See 28 U S C § 455, and the Canons of Judicial Ethics Those provisions clearly provide that disqualifying myself from con- sideration or participation in the St Christopher's case was entirely proper Those same provisions, however, also make clear that there was no basis for disqualification from participation in the instant de- cision I had no personal interest in this proceeding, not with the parties, nor their respective counsel, nor with the Board's administrative proceedings at the regional level Furthermore, I had no financial inter- est whatsoever in any aspect of this case The only other conceivable ground for disqualifi- cation would be the possibility that my opinion con- cerning the substantive legal issues involved might be affected as a result of my career as an attorney, prior to appointment to the National Labor Relations Board Any contention of disqualification on that ground is without foundation Not the least of the reasons is the truth that men and women are chosen to fill positions as Members of the Board for the rea- son that, in large part, they have a considerable ac- quaintance with, and have acquired expertise in the conduct of, labor management relations in this coun- try To paraphrase Mr Justice Rehnquist, supra, proof that a Member's mind at the time he joined the Board was a complete tabula rasa in the area of labor law would demonstrate a lack of qualification to sit on the Board, not a lack of bias Furthermore, if the principle that the Petitioner asserts as determinative of a Board Member's impartiality were in fact law, then all Members, including myself, should be re- quired to forthwith disqualify themselves from con- sideration of all cases coming before the Board which present issues on which they have taken a po- sition in the past In my case, this would involve all matters arising during the 23 years I practiced law prior to assuming my position on the Board Clearly, this is impractical, and would present the added and very real danger of instilling a disruptive force into labor-management relations This is so because it can seldom be predicted with confidence at the time that a case comes to the Board whether the Board will be closely divided on an issue in that case When a Board Member disqualifies himself, he raises the spectre of an affirmance of an Administrative Law Judge, or a Regional Director, by an equally divided Board, thereby leaving unsettled what may be a far- reaching issue of law in the dynamic labor arena It is even clearer when the assertion relates to cases handled by a Board Member's former partners If this were to be the rule, I, having left a firm of ap- 224 NLRB No 90 CEDARS-SINAI MEDICAL CENTER 627 proximately 250 lawyers, would rarely if ever be able to function as intended and required by the statute In fact, I personally never represented any hospital concerned in either this case or the St Christopher's case, nor did I ever represent or take part in a case involving the issues relevant in this case Accordingly, I find no merit in this contention that I disqualify myself from participation in this case MEMBER FANNING, dissenting I would grant the motion on the substantive ground, and on that ground alone, that the Board erred in its decision to exclude housestaff officers from the coverage of the Act to which Congress clearly entitled them I 3 Cedars-Sinai Medical Center, 223 NLRB 251 (see my dissenting opin- ion)