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COMMITTEE OF INTERNS & RESIDENTS v. NEW YORK STATE

September 28, 1976

Application of the COMMITTEE OF INTERNS AND RESIDENTS, Petitioner,
v.
The NEW YORK STATE LABOR RELATIONS BOARD and Misericordia Hospital Medical Center, Respondents, For an order and judgment to review and annul the determination of the respondent to dismiss the petition of the petitioner before the respondent with respect to the house staff officers employed by and working at Misericordia Hospital Medical Center and affiliated institutions, and for other appropriate relief. Application of the COMMITTEE OF INTERNS AND RESIDENTS, Petitioner, v. The NEW YORK STATE LABOR RELATIONS BOARD, Respondent, For an order and judgment to review and null the determination of the respondent to dismiss the petition of the petitioner with respect to the Clinical Fellows employed by and working at Albert Einstein College of Medicine and affiliated institutions, and for other appropriate relief. Application of the COMMITTEE OF INTERNS AND RESIDENTS, Petitioner, v. The NEW YORK STATE LABOR RELATIONS BOARD et al., Respondents, For an order and judgment to review and annul the determination of the respondents to dismiss the petition of the petitioner before the respondents with respect to the house staff officers employed by and working at the Brookdale Hospital Medical Center, the Catholic Medical Center of Brooklyn and Queens, Inc., Hospital for Joint Diseases and Medical Center, the Long Island Jewish-Hillside Medical Center, and their affiliated institutions, and for other appropriate relief



The opinion of the court was delivered by: BRIEANT

MEMORANDUM AND ORDER

 BRIEANT, District Judge.

 On August 30, 1976 the Committee of Interns and Residents ("CIR") commenced four separate proceedings in the New York State Supreme Court, New York County, pursuant to Article 78 of the New York Civil Practice Law and Rules ("CPLR") to review and annul orders of the State Labor Relations Board ("State Board"). Three of these orders had dismissed charges of unfair labor practices brought by the CIR against Albert Einstein College of Medicine, Brookdale Hospital Medical Center and Long Island Jewish-Hillside Medical Center. The fourth order dismissed CIR's petition seeking certification as the collective bargaining agent for house staff at Misericordia Hospital Medical Center, sometimes referred to collectively as ("the Hospitals").

 In these Article 78 proceedings, the only respondent named therein and served was the State Board. On September 8, 1976 the State Board moved in State Court to dismiss for want of merit. Before these motions could be heard, Albert Einstein College of Medicine, Brookdale Hospital Medical Center, Long Island Jewish-Hillside Medical Center and Misericordia Hospital Medical Center moved for leave to intervene in the state proceedings, pursuant to § 7802(d) of the CPLR. By a stipulation entered into in State Supreme Court on September 9, 1976, these Hospitals were each granted leave to intervene in the applicable Article 78 proceeding.

 Thereafter, on September 15 and 16, 1976, the Hospitals filed petitions for removal of the respective Article 78 proceedings in which they had intervened. Thus three of the original Article 78 proceedings brought by the CIR have now been removed to this Court. A fourth proceeding involving an order of the State Board in connection with a dispute at Beth Israel Medical Center is still pending in State Supreme Court.

 Upon the application of the CIR, this Court, on September 16, 1976, signed three orders requiring the petitioners for removal to show cause why these Article 78 proceedings should not be remanded to State Supreme Court. On September 17th, this Court heard oral argument on the three motions to remand. Post trial briefs have been received and considered.

 CIR is an unincorporated association which includes among its members Interns, residents and clinical fellows engaged in the healing arts at various hospitals. All of these persons hold medical degrees, and render salaried professional care and other services, usually for a fixed period of time. These physicians, hereinafter for convenience, referred to collectively as "Housestaff", hope and expect that upon completion of their terms of service, they will have improved their medical skills, and in the case of fellows and residents, will have taken important steps toward accreditation in particular professional specialties, and subspecialties. Thus while Housestaff are probably employees in the common law sense, they also possess some characteristics of students.

 Traditionally, and prior to August 1, 1974, the State Board treated Housestaff as employees of the voluntary and teaching hospitals and certified the CIR to act as a collective bargaining agent for them pursuant to the State of New York's statutory scheme for regulating labor relations of employers not covered by the National Labor Relations Act ("the federal Act"), 29 U.S.C. § 141, et seq. The state statutory scheme which is found in N.Y. Labor Law § 700, et seq., is modeled after the federal Act, and has been administered by the State Board for more than 39 years and is generally regarded as being in pari materia with the federal Act.

 Effective August 1, 1974, the federal Act was amended so as to bring health care institutions within its coverage. 29 U.S.C. § 152(14). Following that date, and the commencement of federal regulation, an unusual situation arose with respect to Housestaff at private, non-profit teaching hospitals, such as the four intervenor hospitals. Beginning with the case of Cedars-Sinai Medical Center, 223 N.L.R.B. 251, 223 NLRB No. 57, 91 LRRM 1398 (1976), reconsideration denied, 224 NLRB No. 90 (1976), the National Board held that Housestaff were "students" rather than "employees' and that their membership organization was not a labor organization within the coverage of the federal Act. The holding in Cedars-Sinai has been followed by the National Board in every subsequent case involving Housestaff, usually with the simple statement that the personnel involved ". . . are not unlike those" in Cedars-Sinai. See St. Christopher's Hospital, 223 N.L.R.B. 166, 223 NLRB No. 58, 91 LRRM 1417 (1976); University of Chicago, 223 N.L.R.B. 1032, 223 NLRB No. 154, 92 LRRM 1039 (1976); St. Clare's Hospital, 223 NLRB No. 163, 92 LRRM 1001 (1976); Buffalo General Hospital, 225 N.L.R.B. 108, 224 NLRB No. 14, 92 LRRM 1379 (1976). Thus although the hospitals are now covered by the federal Act, they are not required by the NLRB decisions to engage in collective bargaining with Housestaff over wages, hours and other terms and conditions of employment, since the CIR is not a labor organization representing employees.

 We observe at this time that in determining who is an employee within the coverage of the federal Act, the National Board's findings are entitled to great weight, and a court may not substitute its own factual inferences for that of the Board when the latter have support in the record. National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111, 130, 64 S. Ct. 851, 88 L. Ed. 1170 (1944). *fn1"

 Following the 1974 Amendments to the federal Act, and the aforementioned decisions by the NLRB, the State Board may have concluded that Congress had preempted the entire field of labor relations with respect to voluntary, non-profit hospitals. As we observe below, this is not entirely clear. In the decisions which prompted the CIR to bring these Article 78 proceedings, the State Board dismissed petitions apparently on jurisdictional grounds, citing federal preemption cases. *fn2"

 The State Board's conclusion suggests several interesting questions: (1) is there federal preemption of the labor relations of Housestaff since the NLRB has determined that the Housestaff are paid students who work primarily to learn, rather than employees under § 2(3) of the federal Act; (2) is the NLRB correct in its conclusion that Housestaff are not such employees; and (3) a point not raised before the State Board, assuming no federal preemption as to Housestaff, because they are students and not within the area sought to be regulated by Congress [according to the NLRB] should the State Board interpret the state statute, adapted from and in pari materia with the federal statute, so as to reach the same conclusion.

 The applicable definition in the federal Act, which the NLRB held did not comprise Housestaff, is found in § 2(3), 29 U.S.C. § 152(3), and reads as follows:

 
"The term 'employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and ...

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