Before Aldisert and Hunter, Circuit Judges, and Cahn, District Judge.*fn*
This petition for review of an order of the National Labor Relations Board requires us to review the actions of an agency that declines to follow our precedent while conceding applicability of that precedent. We hold that the NLRB must respect the applicable decisions of this court, and therefore we grant the petition for review and deny the Board's cross-petition for enforcement.
In 1971, Local 95 of the International Union of Operating Engineers filed a petition with the Pennsylvania Labor Relations Board (PLRB) seeking determination of the appropriate bargaining unit at Allegheny General. The PLRB conducted a hearing and concluded that the appropriate unit would consist of sixty-six persons, eighty-five percent from the maintenance department and the remainder from one occupation in the housekeeping department. Local 95 won the representation election, and Allegheny General appealed the bargaining unit issue through the Pennsylvania court system. Meanwhile, the 1974 Health Care Amendments to the National Labor Relations Act, Pub.L. No. 93-360, 88 Stat. 395 (codified in scattered sections of 29 U.S.C.), were passed and became effective. After the effective date of the amendments, Local 95 filed unfair labor practice charges with the NLRB against Allegheny General, alleging interference with the exercise of employee rights in violation of § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), and refusal to bargain with the elected representatives of its employees in violation of § 8(a)(5) of the Act, 29 U.S.C. § 158(a)(5). After a hearing, the Administrative Law Judge held that the dispute was governed by the rule in Memorial Hospital v. NLRB, 545 F.2d 351 (3d Cir. 1976), which denied enforcement of a Board order because the board granted comity to a PLRB determination of the appropriate bargaining unit rather than making its own determination. The ALJ therefore recommended dismissal of the complaint. The Board, speaking through Chairman Fanning and Member Jenkins, declined to follow Memorial Hospital and found Allegheny General in violation of the Act. 230 N.L.R.B. 954, 958 (1977). Member Penello dissented. Id. at 960. Allegheny General's initial petition to this court for review was dismissed on the Board's motion for an opportunity to reconsider in light of our decision in St. Vincent's Hospital v. NLRB, 567 F.2d 588 (3d Cir. 1977), which exhaustively examined the legislative history of the Health Care Amendments and held that traditional standards used to determine appropriate bargaining units are inapplicable to hospital bargaining units.
On reconsideration, the Board affirmed its original position, 239 N.L.R.B. No. 81, 239 N.L.R.B. 872, 100 L.R.R.M. 1030 (1978), conceding the applicability of both Memorial Hospital and St. Vincent's Hospital, but "respectfully disagree(ing)" with the results in both decisions. The Board stated:
In Memorial Hospital of Roxborough v. N.L.R.B., the court held that the extension of comity to a PLRB certification where, as here, the parties had contested the underlying unit determination was contrary to the Act. We respectfully disagree with that holding and believe that the circumstances of this case demonstrate why the Board's policy regarding comity is consistent with the Act.
In St. Vincent's Hospital v. N.L.R.B., the court decided that the legislative history of the 1974 amendments to the Act . . . precluded the Board from finding appropriate separate units of maintenance and powerhouse employees at health care institutions. . . . After carefully reconsidering the legislative history of the 1974 amendments, we have concluded, that, with all due respect to the court, Congress did not intend to prohibit such units. . . . Also in its decision in St. Vincent's Hospital v. N.L.R.B., the court went on to conclude that the legislative history of the 1974 amendments also precluded the Board from relying on its traditional community-of-interest criteria in making unit determinations in the health care industry. On this point, too, we must respectfully disagree.
239 N.L.R.B. at -- , 100 L.R.R.M. at 1031 (footnotes omitted). The Board also indicated that its traditional standards for bargaining unit determinations would produce the same result reached by the PLRB, concluding that "(t)here is therefore no reason for refusing to extend comity here." 239 N.L.R.B. at -- , 100 L.R.R.M. at 1037. Member Penello again dissented. 239 N.L.R.B. at -- , 100 L.R.R.M. at 1038. Allegheny General refiled its petition in this court.
Before this court, the NLRB and Local 95, as intervenor, make three arguments. First, they argue that, under the appropriate standard for reviewing Board orders, we must enforce the order if the legal theory used by the Board is "reasonably defensible." See Brief for Appellee at 16, citing Ford Motor Co. v. NLRB, 441 U.S. 488, 99 S. Ct. 1842, 60 L. Ed. 2d 420 (1979). Second, they attack both decisions as wrongly decided, reasserting the same positions the Board took in those cases. Finally, the Board by its brief seeks to convince us that it did in fact satisfy the requirements of Memorial Hospital. We reject all three arguments.
The Board's initial contention is that, although this court has disagreed with it on the issues of comity and appropriate hospital bargaining units, we must nevertheless enforce the Board order because it is a "reasonably defensible" construction of the National Labor Relations Act. We reject this attempt to emasculate judicial review of NLRB orders by a resort to an isolated phrase taken out of its context in the Supreme Court's opinion a "fallacy of vicious abstraction."*fn1 The full quotation from Ford Motor Co. is:
Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute. NLRB v. Iron Workers, 434 U.S. 335, 350, (98 S. Ct. 651, 660, 54 L. Ed. 2d 586) (1978). In the past we have refused enforcement of Board orders where they had "no reasonable basis in law," either because the proper legal standard was not applied or because the Board applied the correct standard but failed to give the plain language of the standard its ordinary meaning. Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 166, (92 S. Ct. 383, 390, 30 L. Ed. 2d 341) (1971). We have also parted company with the Board's interpretation where it was "fundamentally inconsistent with the structure of the Act" and an attempt to usurp "major policy decisions properly made by Congress." American Ship Building Co. v. NLRB, 380 U.S. 300, 318, (85 S. Ct. 955, 967, 13 L. Ed. 2d 855) (1965).
441 U.S. at 497, 99 S. Ct. at 1849. In NLRB v. Brown, 380 U.S. 278, 290, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965), the Court rejected an argument similar to the one advanced by the Board in this case, declaring:
Courts are expressly empowered to enforce, modify or set aside, in whole or in part, the Board's orders, except that the findings of the Board with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. National Labor Relations Act, as amended, §§ 10(e), (f), 29 U.S.C. §§ 160(e), (f) (1958 ed.). . . .
Reviewing courts are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute. Such review is always properly within the judicial province, and courts would abdicate ...