Kolovsky, Fritz and Crane. The opinion of the court was delivered by Kolovsky, P.J.A.D.
Defendant Roman Catholic Diocese of Newark owns and operates seven cemeteries within the geographic limits of the Diocese. Plaintiff is a labor union representing production and maintenance employees of defendant at defendant's Holy Cross Cemetery in North Arlington, New Jersey. After the Regional Director of the National Labor Relations Board refused to assert jurisdiction and dismissed plaintiff's representation petition, plaintiff filed a verified complaint in the Chancery Division seeking a judgment requiring defendant to bargain collectively with it.
The matter came before the trial court on the adjourned return date of the order to show cause which issued on the filing of the complaint. Both counsel expressly disclaimed any need for oral testimony on the critical issue of whether the unit plaintiff allegedly represented was an appropriate unit for the purpose of collective bargaining. After hearing argument, the court resolved that issue in plaintiff's favor on the basis of a record consisting only of the verified complaint, defendant's answer and answering affidavit and interrogatories propounded by plaintiff and answered by defendant. An order was entered on October 24, 1972 adjudging that:
The following employees of defendant constitute a unit appropriate for the purposes of collective bargaining, to wit:
All production and maintenance employees, including grave diggers, mechanics, all machine operators, chauffeurs and greens keepers employed by the defendant in the conduct of the Holy Cross Cemetery at 340 Ridge Road, North Arlington, New Jersey, and excluding all office clerical employees, professional employees, guards and supervisors.
and directing that a secret ballot election be conducted among those employees by the New Jersey State Board of Mediation to determine whether or not they desired "to be represented for collective bargaining purposes" by plaintiff.
After an application for a stay was denied, the election was held, with plaintiff being certified by the Mediation Board as having received a majority of the votes cast. The judgment entered on March 2, 1973 repeated the determination quoted above as to what constituted an appropriate bargaining unit, certified plaintiff as "the sole and exclusive bargaining representative of the employees" in that bargaining unit and directed defendant to "bargain with plaintiff as the sole and exclusive representative of its employees in the aforesaid bargaining unit."
Defendant appeals, contending that the trial court erred in concluding that defendant's production and maintenance employees at Holy Cross Cemetery constituted a "unit appropriate for the purposes of collective bargaining." Defendant argues that the proofs before the court do not support that conclusion. Defendant recognizes that "the test is not whether the unit sought is the most appropriate unit possible, but rather whether said unit is in fact an appropriate unit," Bowman, et al. v. Hackensack Hospital Assoc., 116 N.J. Super. 260, 277 (Ch. Div. 1971), but argues that the proofs mandated the inclusion in the unit of the production and maintenance employees at all seven cemeteries owned and operated by it in order for the unit to be in fact an appropriate unit for collective bargaining with defendant.
While decisions of the National Labor Relations Board (N.L.R.B.) and of the federal courts in cases arising under the Labor Management Relations Act of 1947, 29 U.S.C.A. sec. 141 et seq. are not binding when our courts are called upon to decide cases in the area of labor relations, Cooper v. Nutley Sun Printing Co., Inc., 36 N.J. 189, 200 (1961), we may properly look to those decisions for guidance in resolving questions arising in that area, and particularly the question of what constitutes an appropriate bargaining unit. This is true even in cases of employment which are expressly excluded from the jurisdiction of the N.L.R.B., e.g. employments in a non-profit hospital, see Johnson v. Christ Hospital, 84 N.J. Super. 541 (Ch. Div. 1964), aff'd
It is even more desirable that we seek guidance from those decisions in cases where, as here, the controversy is within the jurisdiction of the N.L.R.B. but that Board, in the exercise of the discretion granted it and for reasons unrelated to the merits of the dispute, has refused to assert jurisdiction.
We may start with the analysis made in N.L.R.B. v. Metropolitan Life Insurance Company, 380 U.S. 438, 85 S. Ct. 1061, 13 L. Ed. 2d 951 (1965) of the applicable provisions of the Federal statute:
Section 9 (b) of the National Labor Relations Act, 49 Stat. 453, as amended, 29 U.S.C. § 159 ...