Memorial hospital of Roxborough

MEMORIAL HOSPITAL OF ROXBOROUGH Memorial Hospital of Roxborough and Local 835, International Union of Operating Engineers, AFL- CIO. Case 4-CA-7003 August 15, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS, PENELLO, AND MURPHY On September 17, 1975, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding which granted the General Counsel's Motion for Summary Judgment and found that Memorial Hospital of Roxborough, hereinafter Respondent, had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, by refusing to bargain with Local 835, International Union of Operating Engineers, AFL-CIO, hereinaf- ter Local 835. The Board ordered Respondent to cease and desist from refusing to bargain collectively with Local 835 and to bargain upon request of Local 835. The representation issues underlying the present controversy had been resolved under state law by the Pennsylvania Labor Relations Board, hereinafter PLRB. Accordingly, the PLRB had determined that a unit of maintenance department employees at Memorial Hospital constituted an appropriate unit, determined that Respondent's charges challenging the validity of the subsequent representation election were without merit, and certified Local 835 as the collective-bargaining representative for the employ- ees in the designated unit. Shortly after Respondent refused to bargain with Local 835 to challenge the PLRB's unit determination and the validity of the PLRB-sanctioned election, the health care amend- ments of 19742 became effective, thereby preempting the field of labor relations in the health care industry and bringing the instant dispute within the exclusive jurisdiction of the National Labor Relations Board. In issuing its Decision and Order in the above- entitled proceeding, the National Labor Relations Board extended comity to the PLRB's certification of Local 835, finding that the PLRB's election proce- dures conformed to due process requirements and that extension of comity would effectuate the policies of the National Labor Relations Act. On October 18, 1976, the United States Court of Appeals for the Third Circuit granted Respondent's petition for review and denied the Board's cross- 220 NLRB 402. 2 Public Law 93-360 (July 26, 1974). :' 545 F.2d 351 (C.A. 3. 1976). In view of our decision to remand for heanng before an Administrative 231 NLRB No. 67 petition for enforcement. The court rejected the Board's extension of comity to the PLRB certifica- tion because of Respondent's challenge to the appropriateness of the underlying unit determina- tion. The court concluded that the National Labor Relations Act requires this Board in each and every case to exercise its discretion in determining the appropriate unit for collective bargaining and does not permit the Board to abdicate this responsibility by deferring to a state agency's determination under principles of comity. Accordingly, the court remand- ed the case for further proceedings consistent with its opinion.3 The Board, having decided to accept the remand, notified the parties of its decision and invited statements of positions. Such statements were re- ceived from Respondent, Local 835, and the General Counsel. The General Counsel contends that the Board is not required to conduct a new hearing on the appropriateness of the maintenance department unit, but that it may review the record before the PLRB and use this as the basis for its unit determination. Accordingly, the General Counsel moved to admit into evidence the transcripts and exhibits of the PLRB proceedings. 4 Local 835 contends initially that the court erred in failing to uphold the Board's grant of comity to the PLRB certification. Alternatively, Local 835 asserts that the Board should not remand the case for further hearing on the appropriate unit, but that it should review the record of the PLRB proceeding in order to make the unit determination and on that basis resolve the unfair labor practice allegations. Local 835 points out that Respondent has never alleged that the PLRB hearings were improper nor that all available evidence had not been introduced. Respondent asserts that the complaint should be dismissed, arguing that it would be inappropriate for the Board to review PLRB proceedings wherein the Board's standards were not controlling. Respondent contends that the most expeditious course to resolve the representation question in this matter is for the Board to entertain an appropriate representation petition. In this regard, Respondent states that it "stands ready to file another RM petition in this matter should Local 835 still maintain its demand for recognition." Law Judge, we believe that the introduction of such evidence would be more appropriately raised at this hearing. Accordingly, the General Counsel's motion is hereby denied, without prejudice to its renewal before the Administrative Law Judge. 419 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While we respectfully disagree with the court's rejection of our grant of comity to the PLRB's certification,5 we recognize our acceptance of the court's decision on remand as binding on us for the purpose of deciding this case. The Board has duly considered the instant case in light of the court's remand and statements of position of the parties. We view the court's remand as requiring the develop- ment of a full record, sufficient to resolve the unit question underlying the unfair labor practice allega- tions in the complaint and to permit the Board to give proper consideration to the congressional admonition regarding the proliferation of units in the health care industry. Accordingly, we find that it will satisfy the mandate of the United States Court of Appeals for the Third Circuit and that it will also effectuate the purposes of the Act to remand this proceeding to an Administrative Law Judge for hearing and decision.6 We do not find merit in the contention of our dissenting colleague that it is potentially improper to remand the case for a hearing to develop the full record requested by the court. The Board routinely makes unit determinations in cases where a bargain- ing order is issued on the basis of a card majority. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board orders that this proceeding be, and it hereby is, remanded to the Regional Director for Region 4 for the purpose of arranging a hearing before an Adminstrative Law Judge in accordance with the court's remand and that the Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that, upon the conclusion of such hearing, the Administrative Law Judge shall prepare and serve on the parties a Decision contain- ing findings of fact based on the evidence reviewed, conclusions of law, and recommendations, and that, following service of the Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applica- ble. MEMBER JENKINS, dissenting: I Member Penello dissented from the Board's original Decision and Order granting comity to the PLRB's certification. 6 In his dissent from the Board's Decision and Order in the above- entitled proceeding which granted the General Counsel's Motion for Summary Judgment and found that Respondent had violated Sec. 8(aX5) and (1) of the Act by refusing to bargain with Local 835, Member Penello stated that "in cases involving nonprofit health care facilities, a relatively new area of Board jurisdiction, [the Board ] should not blindly give comity where there has been a recent state board certification and no intervening or prior collective-bargaining history." In accord with this view, Member Penello indicated that he would have denied both Respondent's motion to While I respectfully disagree with the court's refusal to give effect to our grant of comity to the PLRB's certification, the acceptance of the remand binds us to accept the court's decision as the law of the case in the instant proceeding. With that as a starting point, I am compelled nevertheless to disagree with the decision of my colleagues in the majority to remand the case for hearing on the underlying unit question for the purpose of resolving the propriety of Respondent's refusal to bargain. I would find that the only course of action is to dismiss the complaint in its entirety. I agree with Respondent that it would be inappro- priate to use the record evidence in the PLRB proceeding as the evidentiary basis for the Board to presently decide whether the maintenance unit certified by the PLRB is appropriate for purposes of collective bargaining. The record before the PLRB was made almost 4 years ago and the evidence is therefore stale. Moreover, reliance on the record evidence established in the proceeding before the PLRB would constitute an implicit extension of comity to those proceedings since the record evi- dence was adduced for that forum in conformity with its particular standards. Such a result would be accomplishing, indirectly, what the court has told us cannot be done directly. Furthermore, the use of record evidence from the PLRB proceedings, as suggested by the General Counsel and Local 835, as well as the decision of my colleagues in the majority to remand the instant proceeding for hearing before an Administrative Law Judge, presents fundamental problems of due pro- cess. It would be highly irregular to find that Respondent has violated Section 8(aX5) and (I) of the Act by refusing to bargain with the collective- bargaining representative of a unit of employees which we have yet to find appropriate. This case is clearly distinguishable from the type of case referred to by my colleagues in the majority where we do in a sense engage in after-the-fact unit determinations. In that type of situation an employer is held to act at its peril since we deem it to be on notice regarding the current status of the law under our Act. In this case Respondent clearly predicated its course of conduct on the then existing substantive and procedural requirements of the PLRB. To now hold Respondent dismiss the complaint and the General Counsel's Motion for Summary Judgment, and instead would have remanded the case for a hearing before an Administrative Law Judge for the purpose of making recommendations to the Board regarding the appropriateness of a maintenance unit at the facility involved herein. To be consistent with the position expressed above, with which he still agrees, and to comply with the court's decision on remand, Member Penellojoins his colleagues in the majority in a remand of the instant case to an Administrative Law Judge "for the purpose of conducting a hearing, making findings of fact, and making recommenda- tions to the Board regarding the appropriateness of a maintenance unit at this facility." 420 MEMORIAL HOSPITAL OF ROXBOROUGH accountable through the retroactive imposition of the requirements of a new forum operating under a new statutory mandate, the health care amendments of 1974, is unreasonably burdensome. Indeed, the proliferation of complex litigation before the Board and the courts following the enactment of these amendments serves to underscore the significance of this proposition. As the underlying representation issue is not properly capable of resolution by remanding the instant case for a hearing before an Administrative Law Judge, I am unable to find that Respondent engaged in conduct violative of Section 8(a)(5) and (1) of our Act in the manner alleged in the complaint. Accordingly, I would vacate our prior Decision and Order and dismiss the complaint in its entirety. 421