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September 10, 1974

Methodist Hospital of Brooklyn, Plaintiff,
The New York State Labor Relations Board et al., Defendants

Cannella, D.J.

The opinion of the court was delivered by: CANNELLA

Memorandum Decision


 Plaintiff's application for a preliminary injunction, Fed. R. Civ. P. 65(a), enjoining the defendants from holding or seeking to hold any hearing pursuant to the New York State Labor Relations Act with respect to plaintiff and further enjoining defendants from issuing any certification, decision or other report purporting to resolve any labor dispute or controversy involving the plaintiff and the defendant union or from otherwise proceeding under the New York State Labor Relations Act, is denied. The temporary restraining order heretofore issued by Judge Conner on August 30, 1974 and continued by this Court on September 9, 1974 is hereby dissolved and vacated.

 The operative facts giving rise to the present controversy are not in dispute amongst the parties and may be briefly stated. Pursuant to the filing of a petition by the Committee of Interns and Residents on May 1, 1974, the New York State Labor Relations Board issued, over the objection of plaintiff Methodist Hospital a memorandum and direction of election dated May 10, 1974 ordering a representation election in a unit of interns, residents, chief residents and fellows at the Hospital.

 At such election, which was held on June 6, 1974, 108 of a possible 119 ballots were cast in the following fashion: 66 votes for the Union, 1 against the Union and 1 ballot was void. In addition, the Hospital has challenged 40 ballots, those of the chief residents and others of the House Staff that are claimed to be supervisors, fellows and staff members permanently leaving the employ of the Hospital on June 30, 1974. On June 13, 1974, the Hospital served objections to the election upon the State Board. As a result, the State Board ordered a hearing of these objections, which hearing commenced on July 18, 1974 and which was subsequently adjourned to September 4, 1974 by the hearing examiner. The September 4 hearing was cancelled as a consequence of Judge Conner's temporary restraining order and has now been rescheduled for September 11, 12 and 13, 1974.

 The basis upon which plaintiff premises the instant application for preliminary injunctive relief has been concisely stated by its counsel in the following terms:

. . . Since August 25, 1974, Public Law 93-360 has entirely pre-empted the jurisdiction of defendant New York State Labor Relations Board . . . over labor disputes of any kind involving non-profit hospitals, such as the Hospital, and has vested such jurisdiction exclusively in the National Labor Relations Board. Consequently, by attempting to proceed with the hearing on the instant case, the State Board is seeking to arrogate to itself subject matter jurisdiction in an area in which it unquestionably lacks even a colorable claim of right. While such arbitrary action in excess of power warrants immediate injunctive relief without more, should the State Board be allowed to hold hearings, Hospital physicians and administrative personnel will be forced to lose time from their essential patient care duties and to incur expense in order to prepare for and testify in a completely void proceeding that will disrupt labor relations at the Hospital. Such irreparable injury to the Hospital, its patients and to the public at large creates an even greater claim to injunctive relief and bespeaks the need for immediate action by this Court. *fn1"

 For the reasons hereinafter expressed, the Court does not agree with the position asserted by plaintiff and, accordingly, denies the request for preliminary injunctive relief.


 It is settled in this Circuit beyond need of citation that a preliminary injunction may issue only upon a finding of certain well-defined circumstances.

The standard which governs the trial court in the determination of whether or not a preliminary injunction should issue is whether or not the moving party has carried the burden of clearly demonstrating a combination of either probable success on the merits and the possibility of irreparable damage, or the existence of serious questions going to the merits and the tipping of the balance of hardships sharply in its favor. *fn2"

 It is therefore the endeavor of this Court in the ensuing paragraphs to determine whether or not the plaintiff has satisfied the burden which is placed upon it by the rule enunciated above.

 At the outset, the Court notes that this is not a case in which it is called upon to determine a question of federal preemption in accordance with the settled line of Supreme Court precedent. *fn3" It is not disputed amongst the parties, nor could it properly be the subject of dispute, that Pub. L. 93-360, 88 Stat. 395 preempts the jurisdiction of the State Board with regard to non-profit hospitals such as plaintiff. The clear wording of the statute, which removes the former exemption accorded to such institutions by Section 2(2) of the National Labor Relations Act, 29 U.S.C. ยง 152, can leave no doubt as to the preemptive effect of the amendment.

(a) Section 2(2) of the National Labor Relations Act is amended by striking out "or any corporation or association operating a hospital, if no part of the net earnings inures to the ...

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