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LONG ISLAND COLLEGE HOSPITAL v. MARTIN P. CATHERWOOD (10/14/68)

COURT OF APPEALS OF NEW YORK 1968.NY.43104 <http://www.versuslaw.com>; 241 N.E.2d 892; 23 N.Y.2d 20 decided: October 14, 1968. LONG ISLAND COLLEGE HOSPITAL, APPELLANT,v.MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER OF THE STATE OF NEW YORK, ET AL., RESPONDENTS; IN THE MATTER OF LONG ISLAND COLLEGE HOSPITAL, APPELLANT, V. MARTIN P. CATHERWOOD, AS INDUSTRIAL COMMISSIONER OF THE STATE OF NEW YORK, ET AL., RESPONDENTS Matter of Long Is. Coll. Hosp. v. Catherwood, 29 A.D.2d 642, reversed. Long Is. Coll. Hosp. v. Catherwood, 28 A.D.2d 1092, reversed. Counsel Frederick T. Shea, Francis S. Bensel, Theodore R. Iserman and Eugene T. D'Ablemont for appellant in the above-entitled action. Judith P. Vladeck and Stephen C. Vladeck for Local 144, respondent in the above-entitled action. Counsel Louis J. Lefkowitz, Attorney-General (Mortimer Sattler, Samuel A. Hirshowitz and Maria L. Marcus of counsel), for Martin P. Catherwood and others, respondents in the above-entitled action. Counsel Frederick T. Shea, Theodore R. Iserman and Eugene T. D'Ablemont for appellant in the above-entitled proceeding. Counsel Judith P. Vladeck and Stephen C. Vladeck for Local 144, respondent in the above-entitled proceeding. Counsel Louis J. Lefkowitz, Attorney-General (Mortimer Sattler, Samuel A. Hirshowitz and Maria L. Marcus of counsel), for Martin P. Catherwood and others, respondents in the above-entitled proceeding. Counsel Jesse Freidin and Peyton H. Moss for Greater New York Hospital Association, Inc., amicus curiae. Counsel Harry Weinstock and Belle Harper for Local 1199, amicus curiae. Counsel Terry Van Houten for Hospital Association of New York State, Inc., amicus curiae. Judges Scileppi, Jasen and Gibson*fn* concur with Chief Judge Fuld; Judge Burke dissents and votes to affirm in an opinion in which Judges Bergan and Breitel concur. Author: Fuld


Matter of Long Is. Coll. Hosp. v. Catherwood, 29 A.D.2d 642, reversed. Long Is. Coll. Hosp. v. Catherwood, Judges Scileppi, Jasen and Gibson*fn* concur with Chief Judge Fuld; Judge Burke dissents and votes to affirm in an opinion in which Judges Bergan and Breitel concur.

Author: Fuld

 The basic question presented in these cases -- one of first impression -- is this: Where a nonprofitmaking hospital challenges the representation status of a union, does section 716 of the New York State Labor Law empower the New York State Industrial Commissioner to appoint a fact-finding commission to make recommendations for the settlement of the dispute and, if its recommendations are rejected, to submit the issues to compulsory arbitration before the New York State Board of Mediation? The Appellate Division held that the Industrial Commissioner had such power. We disagree; the orders appealed from must be reversed.

A proper understanding of the matters in issue calls for a brief review of the legislative history of section 716 and cognate sections of the Labor Law.

Prior to July, 1963, state and local governments were greatly concerned with repeated strikes, picket lines and violence in nonprofitmaking hospitals, which interrupted essential services by hospital employees, and which resulted in the issuance of a number of injunctions against strikes. (See Jewish Hosp. of Brooklyn v. "John Doe," 252 App. Div. 581; Society of N. Y. Hosp. v. Hanson, 185 Misc. 937, affd. 272 App. Div. 998; Beth-El Hosp. v. Robbins, 186 Misc. 506; Mount Sinai Hosp. v. Davis, 17 Misc. 2d 727.) The Legislature, in considering the enactment of a remedial statute, was confronted with the provisions of the New York State Labor Relations Act which deprived unions, not recognized by a nonprofitmaking hospital, of the right to be certified as the exclusive representative of the employees it represented. Further, the Legislature well knew that, although the courts had enjoined hospital employees from striking and that it was in the public interest to continue the prohibition against such strikes, it would have been unjust to deprive hospital employees of their most potent economic weapon without granting them adequate means of securing relief against substandard wages and working conditions.

In an attempt to resolve these problems, the Legislature, in 1963, amended the Labor Law. There were three vital amendments.

First, strikes by employees of nonprofitmaking hospitals or residential care centers and lockouts by the employer were made unlawful (Labor Law, § 713).

Second, the provisions of the State Labor Relations Act were extended to those institutions (Labor Law, § 715). By enabling unions of hospital employees to invoke the procedures of the State Labor Relations Board, such unions, without striking, could become certified as the exclusive representatives of such employees (Labor Law, § 705). A union of hospital employees could thus petition the board for certification as exclusive representative of an appropriate unit of hospital employees. If the hospital refused to recognize a duly certified union, the union could obtain from the board and, if necessary, from the court an order directing the hospital to bargain with the union (Labor Law, § 704, subd. 6; §§ 705, 706, 707, subd. 1). Under well-established principles, the only way in which an employer, whether industrial or a hospital, could obtain court review of the validity of a board certification was by refusing to bargain with the union and then challenging the board's subsequent order stamping such refusal an unfair labor practice. (See Matter of Wallach's, Inc. v. Boland, 277 N. Y. 345.)

Third, under section 716 (a new section), mediation, fact-finding and binding arbitration were established for the resolution of "disputes" between a nonprofitmaking hospital or residential care center and a union. The Industrial Commissioner or the New York State Board of Mediation was empowered to submit "disputes", as defined by that section, to a fact-finding commission and, if the findings were rejected, to binding arbitration. Section 716, far from encompassing all disputes, covered only economic and union security issues; this is the way in which section 716 (subd. 1) reads: "As used in this section 'grievance' means any controversy or claim arising out of or relating to the interpretation, application or breach of the provisions of an existing collective bargaining contract. As used in this section 'dispute' means all other controversies, claims or disputes between the employees of a non-profitmaking hospital or residential care center, or their representatives, and such hospital or residential care center concerning wages, hours, union security, seniority or other economic matters, including, but not limited to, controversies, claims or disputes arising in the course of negotiating, fixing, maintaining, changing or arranging such terms or conditions."

Thus, under the 1963 amendments, the Labor Board's traditional jurisdiction to determine representation questions -- subject to court review under section 707 -- was for the first time extended to cover nonprofitmaking hospitals and residential care centers, and all other disputes (primarily economic issues) were to be determined through mediation, fact-finding and compulsory arbitration. The new amendments consequently meshed into the existing system controversies between nonprofitmaking hospitals and unions, leaving representation issues to the Labor Board, subject to court review under section 707, and economic issues to mediation, fact-finding and compulsory arbitration.

With this legislative background, we turn now to the events and proceedings in these cases. The Labor Board certified Local 144 as the bargaining representative of the maintenance employees. The hospital thereafter refused to bargain collectively with it on the ground that it did not represent the employees as it claimed. The union chose not to follow the traditional procedure of filing an unfair labor practice charge under section 704 (subd. 6) against the hospital for refusal "to bargain collectively with representatives of employees" -- a procedure which, as we have already pointed out, would have enabled the hospital judicially to challenge the finding of an unfair labor practice as well as the Labor Board's certification of the union as exclusive bargaining representative. (See Matter of Wallach's, Inc. v. Boland, 277 N. Y. 345, supra ; Labor Bd. v. Metropolitan Ins. Co., 380 U.S. 438, 439.) Instead, it invoked the provisions of section 716 (subd. 4) for the resolution of the controversy. The Industrial Commissioner appointed a three-man fact-finding commission and, when its recommendations were rejected by the hospital, the Commissioner sent the controversy to compulsory arbitration before the New York State Board of Mediation. The hospital brought the present actions in which it is essentially seeking to enjoin the fact-finding commission from functioning and to stay the compulsory arbitration proceeding.

As already indicated, we are called upon to decide whether an issue as to representation is a "dispute" under section 716 (subd. 1). If it is not, then, the Industrial Commissioner lacked the authority to appoint the fact-finding commission and to send the issue to compulsory arbitration. The legislative history, the language of the amendments and underlying policy considerations lead us to conclude that representation issues are not embraced in the word "dispute" as defined by that section.

The reason for excluding representation issues from that definition is manifest: the same legislative body, which had declared in section 716 that economic issues were to be resolved by mediation, fact-finding and binding arbitration, also amended section 715 to provide that representation issues in the case of nonprofitmaking hospitals would be determined -- as they had been in the case of industrial and commercial establishments (§ 705) -- by the Labor Board. Since, therefore, representation disputes were to be resolved by the Labor Board, there was neither occasion nor reason for the Legislature to create different procedures and a second tribunal to resolve the same issue, especially since questions as to representation, including any issue as to the appropriate bargaining unit, call particularly for the expert judgment of the Labor Board. As we wrote in Matter of Levinsohn Corp. (Joint Bd. of Cloak, Suit, Skirt & Reefer Makers' Union) (299 N. Y. 454, 466), in speaking of the powers of the National Labor Relations Board to deal with representation issues -- and this applies with equal force to the State Labor Board -- "The Federal courts have uniformly recognized that because of the complexity and difficulty of the problem of designating the appropriate unit, the power to make the decision has been delegated exclusively to the expert judgment of the board which has wide discretion in making the determination."

The words, "concerning the association or representation of persons", are contained in the definition of "labor dispute" as set forth in section 701 (subd. 8), a section which has been in effect for many years prior to 1963 and which, although inapplicable to the present cases, does furnish the background for viewing the definition of "dispute" in section 716 (subd. 1). If the design of the Legislature had been to make section 716 applicable to representation issues, it would have been a simple matter to have included those section 701 words in the definition contained in section 716 (subd. 1).*fn1

That those words were intentionally omitted from section 716 (subd. 1) is also apparent from the fact that the Legislature rejected the Savarese bill -- the forerunner to section 716 -- which called for mediation and compulsory arbitration of "labor disputes" between nonprofitmaking hospitals and representatives of their employees but defined "labor disputes" as including controversies "concerning the ...


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