On Petition for Review and Cross-Petition for Enforcement of an Order of the National Labor Relations Board.
Before Fairchild, Chief Circuit Judge, Wisdom, Senior Circuit Judge,*fn* and Sprecher, Circuit Judge.
Mary Thompson Hospital, Inc. asks this court to review and set aside an order by the National Labor Relations Board (Board), requiring it to bargain with Local 399, the elected bargaining representative for four of its 410 employees. The Hospital argues that, contrary to the Board's determination that four licensed stationary engineers constitute an appropriate bargaining unit, the establishment of a separate bargaining unit for those employees violates the congressional admonition against an undue proliferation of bargaining units in the health care industry. The Board cross-petitions for, and the Union requests as intervenor, enforcement of the Board's order directing the Hospital to bargain with the Union. After examining the briefs and record in this case and in light of the abundant authority requiring the Board to consider the congressional admonition, we set aside and deny enforcement of the Board's order.
Mary Thompson Hospital, Inc. is a nonprofit health care facility with 410 employees. Since 1972, the Hospital Employees Labor Program (HELP) has been the bargaining representative for a unit comprised of some of the Hospital's service, maintenance and technical employees. The current HELP bargaining agreement, effective until March 31, 1981, covers approximately 135 of the Hospital's employees, and includes all housekeeping employees, licensed practical nurses, nurses' assistants, dietary and general maintenance employees but excludes all regularly scheduled employees working less than twenty (20) hours per week, or casual employees, guards, student nurses, engineers, licensed maintenance men, licensed and/or certified employees and supervisors and all other hospital employees. Joint Appendix at 78.
The focus in this controversy is on four licensed stationary engineers (LSEs) who are not covered by the HELP contract and who are part of the Maintenance and Engineering Department of the Hospital. That Department consists of five other employees, a painter and four maintenance workers, who are covered by the HELP contract, and of two supervisors who are expressly excluded from the contract.
The Maintenance and Engineering Department operates seven days a week, with three shifts a day. One stationary engineer is on duty for each shift. The LSE's job description reads as follows:
Operates and maintains one or more coal, gas or oil-fired boiler, and such auxiliary equipment as steam engine, air compressors, and generators, to provide steam, electric power, and auxiliary services. Observes meters and gauges to determine operating condition of equipment and to regulate flow of water and fuel in accordance with needs and safety standards. Adjusts and repair (sic) equipment. Records such data as hours of operation, temperature and pressure, and fuel consumption, in a log.
Education : Ability to read and write, make arithmetical computations, and follow complex instructions. Courses include general science, physics, mechanical drawing, steam powered equipment, blueprint reading, operation of boilers of various horsepower, steampipe connections, methods of fixing, safety requirements, cleaning of flues, and making minor repairs.
Training and Maintenance : Worker must have progressive experience as a fireman, stationary boiler and in tending various types of smaller and lower pressure boilers before qualifying for tending boilers of specific horsepower and pressure. Local or state license is usually required for specific class of equipment operated. Up to three years experience may be required.
Job Knowledge : Must be thoroughly familiar with fixing, operating and repairing steam boilers and auxiliary equipment, and be able to read and interpret blueprints and technical specifications. May be required to operate and repair specialized equipment, such as air conditioning, refrigeration, and water-purifying equipment.
On June 28, 1978, Local 399, International Union of Operating Engineers, petitioned the Board to represent a unit consisting of the four LSEs. The Hospital opposed the formation of a separate bargaining unit for the LSEs, arguing that such a unit violated the congressional admonition against the undue proliferation of bargaining units in the health care industry. After reviewing the record of a hearing on the issue, National Labor Relations Board Regional Director Alex Barbour identified a number of factors which distinguished LSEs from other Hospital employees. Stating that the LSEs were separately located, were required to be licensed, performed a highly specialized function, and had minimal contact with the other nonprofessional employees who were not covered by the HELP agreement, he concluded that the LSEs enjoyed a separate community of interest and therefore constituted an appropriate separate bargaining unit. He did not analyze the issue in terms of the congressional admonition. See Mary Thompson Hospital, No. 13-RC-14798 (N.L.R.B. Aug. 9, 1978) at 3.
The Hospital, represented by new counsel, moved for rehearing and reconsideration of the determination, but the motion was denied. Pursuant to the Board's decision, an election was conducted in which a majority of the LSEs voted to have Local 399 as their bargaining representative. Despite this election, the Hospital refused to recognize or bargain with the Union as the bargaining agent for the LSEs, maintaining its position that a separate unit consisting solely of the LSEs was inappropriate, both under the National Labor Relations Act (the Act) and case law.
On October 24, 1978, Local 399 filed charges with the Board, alleging that the Hospital was engaged in unfair labor practices. Consequently, on November 16, 1978, the Board issued to the Hospital a formal complaint and notice of hearing, asserting that the Hospital had violated the National Labor Relations Act. In a summary judgment, the Board concluded that the Hospital's refusal to bargain with the Union constituted an unfair labor practice within the meaning of sections 8(a)(5) and (1) of the Act, and it ordered the Hospital to cease and ...