On Petition for Review of an Order of the National Labor Relations Board.
Seitz, Chief Judge, Aldisert and Garth, Circuit Judges. Seitz, Chief Judge, dissenting.
Prior to the enactment of the nonprofit hospital amendments*fn1 to the National Labor Relations Act (N.L.R.A.)*fn2 on July 26, 1974, the rights, if any, of employees of nonprofit hospitals to organize and bargain collectively were matters of state law.*fn3 However, the 1974 amendments brought nonprofit hospitals and their employees within the coverage of the N.L.R.A. and subject to the jurisdiction of the National Labor Relations Board (Board).*fn4
On this petition for review and cross-petition for enforcement of an unfair labor practice order of the Board, we are presented with a representation dispute in which a state agency, prior to the effective date of the amendments initially exercised jurisdiction. The Board, thereafter, extended comity to the state agency determination and concluded that the employer's refusal to bargain with the employees' representatives constituted unfair labor practices under § 8(a)(1) and (5).*fn5 Since we hold that the Board's grant of comity with respect to a determination of an appropriate bargaining unit was improper, we grant the petition for review and deny the cross-petition for enforcement.
On April 17, 1973, Local 835 International Union of Operating Engineers, AFL-CIO (Local 835) petitioned the Pennsylvania Labor Relations Board (P.L.R.B.) to approve a proposed unit limited to all maintenance department employees at Memorial Hospital of Roxborough. App. at 1. Memorial Hospital objected to the unit proposed in that it failed to include within it all service department employees as well as maintenance department employees.
A hearing on Local 835's representation petition was held on May 25, 1973. App. at 3-85. On September 21, 1973, the P.L.R.B., based upon the evidence adduced at that hearing, concluded:
Upon the facts as found herein and our previous decisions, it is the opinion of the Board [P.L.R.B.] that separate units should be established for the Service and Maintenance Employees of Memorial Hospital of Roxborough. Accordingly, we find that the unit petitioned for is appropriate.
App. at 90. As a result of this decision, a representation election was ordered in a unit of maintenance department employees only.
After the election in which Local 835 was selected as the exclusive bargaining representative of the unit, Memorial Hospital filed an unfair labor practice complaint with the P.L.R.B. App. at 95. This complaint charged that the union had made material misrepresentations of fact on the eve of the election to which the hospital could not effectively reply. A hearing as to this charge was held on December 11, 1973. Based upon its finding that the union had not made any material misrepresentations, the P.L.R.B. on March 15, 1974 dismissed the hospital's complaint. App. at 241-45. That same day the P.L.R.B. entered a nisi order of certification designating Local 835 as the exclusive representative of the maintenance department unit. App. at 246-48.
Immediately thereafter Memorial Hospital filed exceptions to the P.L.R.B.'s dismissal of its unfair labor practices charge arising from the election. On July 2, 1974 the P.L.R.B. dismissed the exceptions thereby making its earlier order absolute and final. App. at 256-57.
During August 1974 Local 835 sought to engage in collective bargaining on behalf of the employees of the maintenance department. However, Memorial Hospital, still objecting that the unit was inappropriate and the election invalid, refused to enter into negotiations with the union. Before the union filed with the P.L.R.B. any charges of unfair labor practices against Memorial Hospital,*fn6 and Memorial Hospital sought review of any P.L.R.B. orders in the Pennsylvania courts,*fn7 the nonprofit hospital amendments to the N.L.R.A. became effective on August 25, 1974. The federal statute, by preempting the field of labor relations in health care institutions, thus brought the Local 835-Memorial Hospital dispute within the exclusive jurisdiction of the Board. See 120 Cong. Rec. S6942, S6991 (May 2, 1974), S7311 (May 7, 1974), S12104 (July 10, 1974); San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 3 L. Ed. 2d 775, 79 S. Ct. 773 (1959).
Local 835 then filed an unfair labor practice charge with the Board claiming that Memorial Hospital's refusal to bargain constituted a violation of federal law. Based upon these allegations the regional director of the Board issued a complaint charging Memorial Hospital with having violated § 8(a)(1) and (5) of the N.L.R.A., 29 U.S.C. § 158(a)(1), (5).*fn8 Memorial Hospital responded by denying that it had any obligation to bargain with Local 835 since the unit was inappropriate and the election improper.
Prior to a hearing on this complaint the General Counsel of the Board moved for summary judgment. The General Counsel argued first that Memorial Hospital's defenses to the complaint raised no factual questions requiring a hearing since they had already been resolved by the P.L.R.B. Second, he urged that the Board grant comity to the certification issued by the P.L.R.B. If comity were granted to the P.L.R.B.'s determinations the General Counsel contended that Memorial Hospital's defenses would be legally insufficient to resist the unfair labor practice charge.
On April 25, 1975, the Board with one member dissenting, ordered the proceeding transferred to it from the regional director. 217 N.L.R.B. No. 99 (1975); App. at 294-98. Thereafter, the Board on September 17, 1975 granted the General Counsel's motion for summary judgment and ordered Memorial Hospital to cease and desist from refusing to bargain with Local 835 as the exclusive representative of the maintenance unit. 220 N.L.R.B. No. 73 (1975); App. at 309-320.
In reaching this decision the Board considered as the threshold question whether it "should extend comity to the certification of the P.L.R.B., thereby finding . . . [that Memorial Hospital] is obligated to bargain with the Union as the only elected representative of the majority of employees in the appropriate unit." App. at 311. The Board resolved this question as follows:
We will recognize the results of an election conducted by a responsible state agency, and therefore extend comity to a certification issued pursuant to such an election, where the state agency's election procedures conform to due process requirements and effectuate the policies of the Act. We have reviewed the decisions, orders, and certifications issued by the P.L.R.B. in the completed proceeding before that agency and have considered [Memorial Hospital's] exceptions and supporting arguments to the authority of those documents. Having done so, we find no basis in due process standards and the policies embedded in the Act to warrant a refusal by this Board to recognize the authority of the certification of the P.L.R.B. in this proceeding. We shall, therefore, accord the certification the same effect as we would attach to one of our own. (Footnotes omitted.)
Moreover, since Memorial Hospital did not offer any newly discovered or previously unavailable evidence, the Board refused to permit it to relitigate any issues which had been or could have been raised during the prior Pennsylvania representation hearing. Based upon the principle of comity, the Board concluded that Memorial Hospital's refusal to bargain constituted an unfair labor practice under § 8(a)(1) and (5).
Memorial Hospital then petitioned this Court to review the Board's decision and order of September 17, 1975 and the Board cross-petitioned for enforcement. Our jurisdiction is predicated upon § 10(e) and (f) of the N.L.R.A., 29 U.S.C. § 160(e), (f).*fn9
Memorial Hospital urges three arguments upon us here. First, the hospital contends that the Board's September 17, 1975 decision and order is infirm in that the Board failed to articulate its reasons for concluding that the maintenance department alone was an appropriate unit. Although the Board did rely upon its precedents as authority for its decision, Memorial Hospital argues that the cases to which the Board looked do not support a grant of comity under the circumstances presented here. Second, Memorial Hospital urges that the Board failed to resolve its objections to the P.L.R.B. election before the Board extended comity to the P.L.R.B. certification. Third, the hospital argues ...