The National Labor Relations Board applies for enforcement of its order finding the respondent in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5), (1), for refusing to bargain with the union certified as the bargaining representative of its maintenance employees. Remanded.
Before Mansfield, Mulligan and Timbers, Circuit Judges.
The National Labor Relations Board applies for enforcement of its order requiring the Mercy Hospital Association (the Hospital) to bargain with a Board-certified union consisting of the maintenance employees of the Hospital. In its decision certifying the bargaining unit the Board did not discuss the weight if any which it gave to the congressional admonition against the proliferation of bargaining units in the health care field. We therefore remand to the Board for consideration of the propriety of the certified unit under a standard affording appropriate deference to the mandate of Congress.
The Hospital, a non-profit 390 bed facility, retains 1,287 full and part-time employees. There is no history of collective bargaining for any Hospital employees. The Hospital is organized into 32 departments or subdivisions of which the maintenance department is one. At the time the petition for election was filed there were 23 maintenance department employees with 17 different job titles.*fn1
In September, 1977 the International Union of Operating Engineers, Local 30-30A, AFL-CIO (the Union), filed with the Board a petition for certification as the exclusive bargaining representative of the Hospital's maintenance employees. The Hospital contested the propriety of such a bargaining unit, claiming, Inter alia, that limiting the unit to maintenance employees would in this instance contravene the directive of Congress that the Board give due consideration to preventing proliferation of bargaining units in non-profit health care facilities. After hearings on the issue the Board's regional director found that a separate unit of maintenance employees was appropriate for collective bargaining. In December, 1977 the Board denied the Hospital's request for review of the regional director's decision and direction of election. Thereafter, an election was held in which a majority of the employees in the unit selected the Union as their collective bargaining representative. When the Hospital refused to negotiate the Union filed an unfair labor practice charge with the Board, alleging a violation of sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C. § 158(a)(1), (5).
The Board's General Counsel moved for summary judgment on the ground that the issues raised by the Hospital had been litigated in the underlying representation proceeding. The Board granted the motion, finding that the Hospital was seeking to relitigate issues decided against it in the presentation proceeding, and that the Union had been properly certified as bargaining representative of the Hospital's maintenance employees. Therefore, the Board concluded that the Hospital's refusal to bargain was in violation of the Act and required the Hospital to bargain with the Union upon request.
Under the Act the Board has the responsibility to "decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." Section 9(b), 29 U.S.C. § 159(b). Hence, unit determinations are matters committed by statute to the Board's discretion and are rarely disturbed by the courts. Packard Motor Car Co. v. N.L.R.B., 330 U.S. 485, 67 S. Ct. 789, 91 L. Ed. 1040 (1947). "Nevertheless, it remains for the courts to insure that the exercise of the agency's discretion is not unreasonable, arbitrary, or in conflict with congressional intent." St. Vincent's Hospital v. N.L.R.B., 567 F.2d 588, 590 (3d Cir. 1977); accord, Long Island College Hospital v. N.L.R.B., 566 F.2d 833, 840 (2d Cir. 1977), cert. denied, 435 U.S. 996, 98 S. Ct. 1647, 56 L. Ed. 2d 84 (1978).
In this case an assessment of the propriety of the Board's unit determination must take place in the context of the 1974 amendment extending coverage of the Act to non-profit hospitals which had been previously exempted by the Taft-Hartley Act. 61 Stat. 137 (1947), 29 U.S.C. § 152(2). The amendment was prompted by the conclusion of Congress that there was "no acceptable reason why 1,427,012 employees of . . . non-profit, non-public hospitals . . . should continue to be excluded from the coverage and protections of the Act." S.Rep. No. 93-766, 93d Cong., 2d Sess. (1974), Reprinted in 2 (1974) U.S.Code Cong. & Admin.News, pp. 3946, at 3948. At the same time, however, Congress was concerned that work stoppages arising out of inter-union jurisdictional disputes and the reluctance of many union members to cross the picket lines of other unions posed serious threats to uninterrupted patient care. See id. at 3948-52. Sensitivity to such dangers resulted in the incorporation into the amendment of a number of mandatory procedures, including strike notice requirements for unions representing employees of health care institutions. Id. at 3951.
In addition, Senator Taft offered a provision which would have prevented Board approval of more than the following four bargaining units in any health care institution: (1) professional employees, (2) technical employees, (3) clerical employees, (4) maintenance and service employees. S. 2292, 93d Cong., 1st Sess. (1973). While this specific limitation on the Board's discretion was not adopted, congressional concern for the underlying problem was embodied in a directive inserted in both the House and Senate Reports accompanying the final version of the bill:
Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee 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). n.1 [By our reference to Extendicare, we do not necessarily approve all of the holdings of that decision.]
S.Rep. No. 93-766, 93d Cong., 2d Sess. (1974), reprinted in (1974) U.S.Code Cong. & Admin.News, pp. 3946, at 3950; H.R.Rep. No. 93-1051, 93d Cong., 2d Sess. 7 (1974).
Senators Taft and Williams, co-sponsors of the 1974 amendment to the Act, explained this directive during floor discussion on the bill. Senator Taft stated:
The administrative problems from a practical operational viewpoint and labor relation (sic) viewpoint must be considered by the Board on this issue. Health-care institutions must not be permitted to go the route of other ...