Petition for Review And Application for Enforcement of an Order National Labor Relations Board, Board Docket No. 6-CA-14603 and 6-CA-15496.
Seitz, Mansmann, Circuit Judges, and Bissell, District Judge.*fn*
The employer, St. John's General Hospital of Allegheny County-ADR Center (the Center), petitions this court for review of the order of the National Labor Relations Board (the NLRB or Board) finding that the Center had engaged in unfair labor practices by refusing to bargain with the union in violation of sections 8(a)(1) and (5) of the National Labor Relations Act (the NLRA or the Act). 29 U.S.C. § 158(a)(1), (5) (1982). The Board cross-petitions for enforcement of its order. This court has jurisdiction pursuant to 29 U.S.C. § 160(e), (f) (1982).
The Center provides detoxification, rehabilitation, and outpatient treatment services for alcoholics and drug addicts. In December 1980 the Union*fn1 filed a petition with the Board's Regional Director seeking to represent a bargaining unit composed of all professional employees, excluding doctors, and all nonprofessional employees, except the clerical staff, employed at the Center.
The Regional Director held a hearing on the petition in early 1981. The hearing centered on two issues: whether the Center's counselors should be classified as professional employees, and whether the eight clerical employees should be included in the bargaining unit.
The Regional Director found that the counselors were properly classified as nonprofessional employees and thus were within the bargaining unit. He then turned to the Center's contention that the eight clerical employees should be in the bargaining unit. The Regional Director concluded that the two data coordinators and the medical records clerk should be placed in the unit. He, however, determined that the other five clerical employees -- three admissions clerks, the switchboard operator, and the billing clerk -- should be excluded from the unit because they were business office clericals. The Regional Director thus ordered that an election be held, with the eight professional employees, all registered nurses, first voting separately on whether they wanted to be included in a bargaining unit with nonprofessional employees.
The Center filed a Request for Review with the Board, challenging the Regional Director's determinations as to the counselors and the clerical employees. The day before the election the Board, by telegraphic order, denied the Center's request for review. The Board, however, stated that the exclusion of the three admissions clerks raised a substantial question, and directed that these clerks be permitted to vote subject to challenge.
The professional employees voted five to three for inclusion in the unit with nonprofessionals. The voting in the overall unit resulted in 55 votes for the Union and 19 opposed to it, with four votes challenged (including the three admissions clerks).
The Center filed an objection to the election, contending that the election eve enfranchisement of the admissions clerks introduced impermissible confusion into the election process. The Regional Director overruled the Center's objection on the ground that it failed to raise a substantial or material issue of fact affecting the validity of the election. He thus certified the Union as the collective bargaining representative of the unit.*fn2 The Board denied the Center's request for review of the Regional Director's decision.
The Center refused to bargain with the Union. The Union filed an unfair labor practice charge against the Center, and the General Counsel filed a complaint and motion for summary judgment against the Center in June.
The unit employees thereafter voted to strike to protest the Center's refusal to bargain. The strike lasted from August 1981 to May 1982. During the strike the Center instituted a number of changes in the working conditions of the unit employees. The General Counsel then filed additional complaints against the Center, alleging that the Center committed unfair labor ...