Petition to review and cross-petition to enforce an order of the National Labor Relations Board, 236 NLRB No. 59, finding that petitioner had violated § 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with a certified union and § 8(a)(3) and (1) by suspending its program for periodic salary increase reviews with respect to employees in the certified bargaining units. Petition to review granted and cause remanded; cross-petition to enforce denied.
Before Lumbard, Friendly and Oakes, Circuit Judges.
The Catholic Medical Center of Brooklyn and Queens, Inc. (the Center) operates four non-profit hospitals in the two boroughs, two of which, Mary Immaculate and St. Mary's, are here involved. It asks us to set aside an order of the National Labor Relations Board, 236 NLRB No. 59; the Board requests us to enforce it. The Board found, affirming one of its administrative law judges, that the Center had violated § 8(a)(5) and (1) of the National Labor Relations Act by refusing to bargain with the New York State Federation of Physicians and Dentists (the Union) which the Board had certified, over the Center's objections, as the exclusive bargaining representative of salaried physicians and dentists after Board-conducted elections at Mary Immaculate and St. Mary's. The Board also found, again affirming the ALJ, that the Center had violated § 8(a)(3) and (1) by suspending for three weeks in the two certified units the salary increase reviews that were being accorded its other salaried physicians and dentists. It entered a "broad order" requiring the Center to cease and desist from in any manner infringing upon the exercise of employee rights.
Promptly after the elections on February 26, 1976, the Center filed objections, one of them being that the elections were invalid because of pro-union activity by supervisors. The Regional Director overruled these on August 27, 1976. After the Center had filed exceptions, the Board, on November 15, 1976, endorsed the Regional Director's ruling, without discussing the question of taint by supervisors' activity. When counsel for the Union requested negotiations and certain information, the Center's lawyer declined in a letter dated February 28, 1977 because the Center desired to obtain judicial review of the overruling of its objections and, as is conceded, there was no other method for securing it. This became the basis for so much of the General Counsel's complaint as charged a violation of § 8(a)(5) and (1). The charge under § 8(a)(3) stemmed from the following: In November 1975 financial difficulties had forced the Center to suspend its policy of periodic salary increase reviews for its physicians and dentists. By early 1977 the fiscal position had improved so as to permit it to begin such a review on February 15. Initially the review did not include physicians and dentists in the certified units, allegedly because the Center feared that a unilateral grant of increases might constitute an unfair labor practice under NLRB v. Exchange Parts Co., 375 U.S. 405, 84 S. Ct. 457, 11 L. Ed. 2d 435 (1964), and NLRB v. Katz, 369 U.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230 (1962). When the Union filed an unfair labor practice charge because of this on February 24, 1977, the Center's director of industrial relations considered that this threat no longer existed and, in the same February 28 letter referred to above, the Center's lawyer advised the Union's counsel that the physicians and dentists in the certified units would be included in the salary increase review program. In consequence, about March 17, 1977, based on a review process begun on March 8, the physicians and dentists in the units received salary increases retroactive to January 1, 1977, the same date applied to physicians and dentists not in the units. The only difference in treatment was that the latter had received their increases about three weeks earlier. After a hearing the ALJ determined that both unfair labor practices had been established.*fn1 He considered that the unfair labor practices found were "of a character which go to the very heart of the policies of the Act" and recommended, in addition to orders requiring compliance with § 8(a)(5) and (3), including "back-pay", "computed in accordance with the formula set forth in F. W. Woolworth Company, 190 NLRB 289 (1950), with interest thereon computed in the manner prescribed in Florida Steel Corporation, 231 NLRB No. 117 (1977), a broad order which, with minor modifications not here material,*fn2 a three-member panel of the Board entered without comment on the merits.
The only objection to the certification still pressed by the Center is the active participation by supervisors on behalf of the Union a ground which, if established, could invalidate the elections even though the efforts of supervisors were to support, rather than, as is more commonly the case, to oppose unionization. Turner's Express Incorporated v. NLRB, 456 F.2d 289 (4 Cir. 1972); NLRB v. Piggly Wiggly Red River Co., 464 F.2d 106, 108 (8 Cir. 1972); NLRB v. Roselon Southern, Inc., 382 F.2d 245 (6 Cir. 1967). Cf. NLRB v. Metropolitan Life Ins. Co., 405 F.2d 1169, 1178 (2 Cir. 1968) (election set aside because supervisors were permitted to participate in campaign and vote in election though union would have won even without their votes). The "supervisors" here in question were physicians who were directors of various departments of the hospitals; the Regional Director found that they were in fact supervisors and the Board does not dispute this.
In the spring of 1975, Dr. Calvin Norman, director of radiology at St. Mary's and three other supervisors, Drs. Gotta, Jadwat and Cardo,*fn3 met with an attorney concerning the organization of the Center's salaried physicians. The attorney advised that this was possible but that the supervisors could not be in the bargaining unit. The four supervisors held three or four meetings during May or June 1975 at or near the hospitals here concerned in order to get an indication of employee interest in and to enlist support for forming a labor organization. Around this time Dr. Norman received an unsolicited call from the Union stating it had been formed to represent physicians. This was followed by a meeting with the four doctors which was attended by three Union officials including Larry Nathan, its executive secretary. Nathan thought he had distributed a number of blank authorization cards; Dr. Norman agreed but the three other supervisors denied this. Dr. Norman signed an authorization card at that time.
In October or November 1975, Nathan was contacted by a physician who advised that an organizing campaign might be fruitful. The Union conducted its campaign by telephone and mail. Dr. Norman and another of the supervisors who had been active from the outset supplied Nathan with names of physicians and dentists who might be interested.
By December 18, 1975, the Union thought it had assembled sufficient support to enable it to file with the Board's regional office a petition seeking an election among all the Center's salaried physicians scheduled to work more than 15 hours per week. On December 31 the Center's Director of Labor Relations and counsel, and Nathan and the Union's counsel met with a Board agent. The Center's counsel questioned the adequacy of the Union's showing of interest. After the agent stated there was a problem about this and the petition had been amended to include dentists, the agent informed the Center's director and counsel that the Union was withdrawing its petition. As the director and counsel were leaving, Nathan said "I'll be back. I'll see you in a couple of weeks." True to that promise, the Union filed two new petitions limited to salaried physicians and dentists at Mary Immaculate and St. Mary's respectively, on January 15, 1976.
The Regional Director found there had been extensive activity by supervisors on behalf of the Union. In addition to having distributed authorization cards, Dr. Norman before and after January 15, 1976, spoke to eligible voters and declared his personal support for unionization in general and for the Union in particular. In late December 1975 Dr. Norman gave Dr. Cardo some 10 authorization cards. On December 31, 1975, the day on which the Union amended its petition to include dentists, Dr. Cardo signed a card, obtained signatures from other dentists and returned the cards to the Union. Both before and after January 15, 1976, he advocated the Union's cause with dentists at Mary Immaculate and anaesthesiologists at St. Mary's. The evidence with respect to Dr. Jadwat was less substantial; about all that was established was that he signed authorization cards on July 23 and December 30, 1975 and offered on the latter date to transmit to the Union a card signed by an anesthesiologist on his staff. Dr. Anel, senior emergency room physician at Mary Immaculate, who was found to be a supervisor, signed an authorization card on December 30, 1975, and asked an emergency room physician to sign one on the same date. A number of other supervisors signed authorization cards, only one of them, Dr. Wadhwa, director of employee health at St. Mary's, after January 15, 1976. The Center had made its opposition to the Union clear to both the supervisors and the employees.
In appraising this evidence the Regional Director and, as we must assume from its approval, the Board were guided by a principle which the Regional Director stated as follows:
The Board, in considering objections to an election, looks only to evidence of conduct which occurred between the time the petition is filed and the election is held. In the case of petitions filed seriatim, the Board relies upon only conduct between the filing of the last petition and the date of the election. These rules are applicable to allegations of supervisory assistance in a union organizational campaign which occur prior to the critical period, although such conduct may be considered to give meaning and dimension to related conduct which occurs during the critical period. . . . (Footnotes omitted.)
Proceeding on this basis the Regional Director found that
(T)he above evidence constitutes insufficient basis for concluding that the voters were precluded from exercising a free choice in the election. Although several supervisory physicians and dentists joined and supported Petitioner from the beginning of its campaign, their only activities during the critical period which commenced on January 15, 1976, consisted of statements of preference for Petitioner and signing in private of an authorization card by a director employed at St. Mary's.
With the focus thus limited to acts that were indeed insignificant, even when given "meaning and dimension" by the extensive earlier activities, particularly on the part of Drs. Norman and Cardo, the Regional Director had no difficulty in regarding "the nature of the supervisory support of Petitioner during the critical period," to wit, the period after ...