Brookhaven Memorial Hospital

National Labor Relations Board - Board DecisionsNov 15, 1974

214 N.L.R.B. 1010 (N.L.R.B. 1974)

1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brookhaven Memorial Hospital , Employer-Petitioner and Guild of Professional , Technical and Office Employees, District 1199, National Union of Hospi- tal & Health Care Employees, RWDSU, AFL- CIO, and Radiologic Technologist Association of America, B.M.O., Division 70, AFL-CIO Brookhaven Memorial Hospital , Employer-Petitioner and Guild of Professional , Technical and Office Employees, District 1199 , National Union of Hospi- tal & Health Care Employees, RWDSU, AFL-- CIO. Cases 29-RM-425 and 29-RM-426 November 15, 1974 DECISION AND ORDER On August 28, 1974, Brookhaven Memorial Hospi- tal (the Employer) filed the petition in Case 29- RM-425 with the Regional Director for Region 29, asserting that Guild of Professional, Technical and Office Employees, District 1199, National Union of Hospital & Health Care Employees, RWDSU, AFL- CIO (hereafter District 1199) and Radiologic Tech- nologist Association of America, B.M.O., Division 70, AFL-CIO (hereafter Radiologic), were claiming to represent certain of its employees. Also on August 28, 1974, the Employer filed with the Regional Director for Region 29 the petition in Case 29-RM-426, naming only District 1199 as claiming to represent certain other of its employees. Prior to this time, on June 16, 1974, District 1199 had filed a petition (SE-48063) with the New York State Labor Relations Board (hereafter State Board) for a unit of the Employer's "professional and tech- nical employees," said to be approximately 75 in number. In a letter dated July 19, 1974, to the State Board, Radiologic requested leave to intervene for a unit of the Employer's X-ray technicians. Having de- termined in earlier cases' that X-ray technicians were not a "particular profession or craft" within the meaning of section 705(2) of the New York State La- bor Relations Act, and "apart from the proviso of Section 705(2) of the Act . . . do not properly consti- tute a separate unit at a hospital," the State Board denied the request to intervene. On July 24, 1974, Radiologic unsuccessfully sought to stay the State Board's unit determination in the New York State Supreme Court. On August 6, 1974, the State Board issued a direc- tion of prehearing election, permissible under state law, asserting that there were no substantial issues in dispute other than the question of whether District 1 Good Samaritan Hospital, et al , 37 SLRB No. 36 (1974) 1199 commanded majority support and directing an election in the following unit: All full time and regular part time technical em- ployees employed by [the Employer] including Laboratory Technicians, Laboratory Trainees, Laboratory Assistants, Clinical Microscopists, EKG Technicians, EEG Technicians, X-ray Technicians, Radiologic Technicians, Baby Technicians, Inhalation Therapists, Pharma- cists, Pharmacist's Technicians, O.R. Techni- cians (excluding Laboratory Students, Assistant Dietician, Central Supply Technician, Regis- tered Nurses, Chief X-ray Technician, Supervi- sor of Blood Bank, Chemistry Supervisor, He- matology Supervisor, Bacteriology Supervisor, Week-End and Evening Supervisor, Chief Phar- macist, Chief Respiratory Therapist, Supervisor of Cytology, Laboratory Manager, Histology Supervisor, EKG Supervisor and all other super- visory and all other employees). The election was held on August 21, 1974. The State Board's report upon secret ballot, issued Au- gust 22, 1974, showed 33 votes for District 1199, 15 votes against, and 21 challenged ballots, which were thus determinative of the results of the election. On September 13, 1974, the State Board issued a notice of hearing, to be conducted on September 27, 1974, to determine the question in controversy concerning representation in the petition pending before the State Board, and to determine the validity of the challenged ballots. The hearing opened on September 27, was contin- ued to October 8, 1974, and closed on the latter date. The matter is now pending before the State Board. In Case 29-RM-425, the Employer filed for a unit of "all technical employees including laboratory technicians, X-ray technicians, inhalation thera- pists," for which it indicated claims for recognition by District 1199 and by Radiologic. In 29-RM-426, the Employer filed for a unit of pharmacists, naming only District 1199 as having claimed recognition. On September 20 and 26, 1974, District 1199 and Radio- logic filed motions to dismiss the RM petitions. On September 27, 1974, the Employer filed a motion in opposition and motion for a speedy hearing and de- termination. On September 27, 1974, the Regional Director transferred these motions to the Board in Washington, D.C., for ruling. District 1199 contends that the unit in which the election was conducted conforms to State Board pre- cedent; that Radiologic was properly excluded from the ballot; that the election was fairly conducted by an impartial state agency and thus should be recog- nized by the National Labor Relations Board (citing 214 NLRB No. 159 BROOKHAVEN MEMORIAL HOSPITAL We Transport, Inc., 198 NLRB 949 (1972) ), that the election is not invalidated because pharmacists were not given a separate voice in the election (citing Re- tail Clerks Union Local No. 324, Retail Clerks Inter- national Association, AFL-CIO (Vincent Drugs No. 3, Inc.), 144 NLRB 1247 (1963); Westinghouse Electric Corporation, 115 NLRB 530 (1956) ), and that there- fore the Employer's petitions should be dismissed. Radiologic contends that the Employer's petitions should be dismissed in order to permit the New York state courts to decide, in the proceeding brought there by Radiologic, the question of separate unit representation for radiologic technologists. The Employer contends, inter alia, that the unit as determined by the State Board is not an appropriate unit for bargaining; that the combining of profes- sional and nonprofessional employees in a single unit, without giving the professional employees a self-determination election, is improper under the National Labor Relations Act; and that the National Labor Relations Board now has exclusive jurisdic- tion and cannot defer this matter for final determina- tion to the State Board. Public Law 93-360 amended the National Labor Relations Act to eliminate the exemption from the coverage of the Act previously accorded to private, nonprofit hospitals. The amendments to the Act be- came effective August 25, 1974, at which time the Employer, a private, not-for-profit health care facili- ty, became subject to the jurisdiction of the NLRB. Assuming that the operations of this Employer meet the discretionary standards for assertion of the Board's jurisdiction over nonprofit hospitals ,2 the pe- titions here are properly before us. In these circumstances the National Labor Rela- tions Board cannot defer to proceedings in the state courts, for it is clear that the NLRB's jurisdiction is exclusive and "the reasons for excluding state admin- istrative bodies from assuming control of matters ex- pressly placed within the competence of the federal Board also exclude state courts from like action." 3 It is well established, of course, that the NLRB will recognize the validity of state-conducted elections and certifications where that election procedure was free of irregularities and reflected the true desires of the employees; in such circumstances the Board has found that no question concerning representation ex- ists.4 Thus, the situation here is seemingly analogous Z The Regional Director's informal investigation indicates preliminarily that the Employer is a nonprofit health-care facility whose gross income during the past 12 months exceeded $500,000 and whose direct out-of-state purchases during the same period exceeded $50,000 3 Joseph Garner and A Joseph Garner, t/a Central Storage and Transfer Company v Teamsters, Chauffeurs and Helpers Local Union No 776 (A F L ), 346 U S 485, 491 (1953) 4 Cornell University , 183 NLRB 329, 334 (1970) 1011 to that in We Transport, supra, in which the Board dismissed an employer's petition pending before the National Labor Relations Board at the time the State Board was conducting a hearing on challenged bal- lots determinative of a state-conducted election in- volving the same employees. But the instant State Board case, unlike We Transport, appears to involve a unit which is on its face at variance with the poli- cies enunciated by the Congress in the National La- bor Relations Act. In the State Board case, SE-48063, District 1199 petitioned for a unit of all "professional and techni- cal employees." The unit in which the State Board directed a prehearing election presumably includes nonprofessional employees, but may also include employees who may be professional employees with- in the meaning of Section 2(12) of the National La- bor Relations Act. Section 9(b)(1) of the National Labor Relations Act provides that the Board shall not "decide that any unit is appropriate for [purposes of collective bargaining] if such unit includes both professional employees and employees who are not professional employees unless a majority of such pro- fessional employees vote for inclusion in such unit." It does not appear that such presumably "profession- al" employees as pharmacists, for example, were giv- en a separate voice in the state-conducted election. To dismiss the Employer's petitions in these circum- stances would assist the unions to accomplish indi- rectly what they cannot achieve directly, at least since August 25, 1974, in private, nonprofit hospitals whose operations affect commerce, and would fly in the face of the congressional command that profes- sional and nonprofessional employees cannot be in- cluded in the same unit unless the professional em- ployees vote separately for such inclusion. The cases cited by District 1199 to the effect that the election is not invalidated by the failure to give pharmacists a separate voice in the election are inap- posite. Neither Westinghouse nor Retail Clerks in- volved the question of recognition of a state-conduct- ed election. In Westinghouse there had in fact been an NLRB election in which the professional employ- ees had been accorded a separate vote.5 In Retail Clerks, the unit had been voluntarily established by the parties and was supported by a 10-year bargain- ing history. In those circumstances the Board held that it was not being called upon to "establish" a unit. Here there is no such long bargaining history and it is clear that the unit is currently in the process of being "established." Accordingly, as the State election has not been completed and is being con- ducted under policies inconsistent with those embod- 5 Westinghouse Electric Corporation, 115 NLRB 530, 531 (fn 2) (1956) 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ied in the National Labor Relations Act, we see no useful purpose to be served in treating it as a bar to the processing of the petition before us . We shall therefore deny the motions to dismiss of District 1199 and of Radiologic and direct the Regional Di- rector to process the petitions in Cases 29-RM-425 and 29-RM-426. ORDER It is hereby ordered that the motions to dismiss of District 1199 and of Radiologic be, and they hereby are, denied. IT IS FURTHER ORDERED that the cases be, and they hereby are, remanded to the Regional Director for Region 29 for further appropriate action.