Cedars-Sinai Medical Center

National Labor Relations Board - Board Decisions

Jun 10, 1976

224 N.L.R.B. 626 (N.L.R.B. 1976)

626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cedars-Sinai Medical Center and Cedars-Sinai
Housestaff Association, Petitioner Case 31-RC-
2983
June 10, 1976
ORDER DENYING MOTION
On March 19, 1976, the National Labor Relations
Board issued a Decision and Order' in the above-
entitled proceeding, finding that interns, residents,
and clinical fellows are not employees within the
meaning of Section 2(3) of the Act Further, the
Board dismissed the petition inasmuch as no ques-
tion affecting commerce existed concerning the rep-
resentation of employees of the Employer within the
meaning of Section 9(c) of the Act
Thereafter, on April 9, 1976, the Petitioner filed a
motion for reconsideration,2 contending, insofar as
the merits of the Decision is concerned, that the
Board, inter aha, exceeded its statutory authority in
finding that interns, residents, and clinical fellows are
not employees within the meaning of the Act, dis-
torted or ignored certain record evidence, failed to
consider the legislative history of the 1974 health care
amendments, and failed to consider whether house-
staff members are professional employees within the
meaning of Section 2(12) of the Act The Employer
submitted a memorandum in opposition to the mo-
tion for reconsideration
The Board having duly considered the matter, it is
hereby ordered that the Petitioner's motion for re-
consideration be, and it hereby is, denied on the
ground that the matters raised therein were previous-
ly considered and rejected by the Board
MEMBER WALTHER, concurring
In its motion for reconsideration, Cedars-Sinai
Housestaff Association, herein the Petitioner, asserts
that despite disqualifying myself from participation
in St Christopher's Hospital For Children, 223 NLRB
166 (1976), nevertheless by my participating in Ce-
dars-Sinai Medical Center, 223 NLRB 251 (1976),
there was an improper influence upon the result in
the St Christopher's decision To this end the Peti-
tioner contends that my participation in the instant
decision was disconsonant with proper ethical con-
cepts There is no merit in this assertion for the fol-
lowing reasons
The opinion of United States Supreme Court Jus-
tice Rehnquist in the case of Laird, Secretary of De-
fense, et al v Tatum, et al, 409 U S 824 (1972), con-
' 223 NLRB 251 (1976) (Member Fanning dissenting)
2 The Physicians National Housestaff Association submitted an amuus
curiae memorandum and a supporting document, which we have accepted
and considered
tams a full statement of the controlling ethics in these
matters To put the matter succinctly, the Petitioner's
assertions do not withstand application of the stan-
dards of properjudicial conduct See 28 U S C § 455,
and the Canons of Judicial Ethics Those provisions
clearly provide that disqualifying myself from con-
sideration or participation in the St Christopher's
case was entirely proper Those same provisions,
however, also make clear that there was no basis for
disqualification from participation in the instant de-
cision I had no personal interest in this proceeding,
not with the parties, nor their respective counsel, nor
with the Board's administrative proceedings at the
regional level Furthermore, I had no financial inter-
est whatsoever in any aspect of this case
The only other conceivable ground for disqualifi-
cation would be the possibility that my opinion con-
cerning the substantive legal issues involved might be
affected as a result of my career as an attorney, prior
to appointment to the National Labor Relations
Board Any contention of disqualification on that
ground is without foundation Not the least of the
reasons is the truth that men and women are chosen
to fill positions as Members of the Board for the rea-
son that, in large part, they have a considerable ac-
quaintance with, and have acquired expertise in the
conduct of, labor management relations in this coun-
try To paraphrase Mr Justice Rehnquist, supra,
proof that a Member's mind at the time he joined the
Board was a complete tabula rasa in the area of labor
law would demonstrate a lack of qualification to sit
on the Board, not a lack of bias Furthermore, if the
principle that the Petitioner asserts as determinative
of a Board Member's impartiality were in fact law,
then all Members, including myself, should be re-
quired to forthwith disqualify themselves from con-
sideration of all cases coming before the Board
which present issues on which they have taken a po-
sition in the past In my case, this would involve all
matters arising during the 23 years I practiced law
prior to assuming my position on the Board Clearly,
this is impractical, and would present the added and
very real danger of instilling a disruptive force into
labor-management relations This is so because it can
seldom be predicted with confidence at the time that
a case comes to the Board whether the Board will be
closely divided on an issue in that case When a
Board Member disqualifies himself, he raises the
spectre of an affirmance of an Administrative Law
Judge, or a Regional Director, by an equally divided
Board, thereby leaving unsettled what may be a far-
reaching issue of law in the dynamic labor arena
It is even clearer when the assertion relates to cases
handled by a Board Member's former partners If
this were to be the rule, I, having left a firm of ap-
224 NLRB No 90
CEDARS-SINAI MEDICAL CENTER 627
proximately 250 lawyers, would rarely if ever be able
to function as intended and required by the statute
In fact, I personally never represented any hospital
concerned in either this case or the St Christopher's
case, nor did I ever represent or take part in a case
involving the issues relevant in this case
Accordingly, I find no merit in this contention that
I disqualify myself from participation in this case
MEMBER FANNING, dissenting
I would grant the motion on the substantive
ground, and on that ground alone, that the Board
erred in its decision to exclude housestaff officers
from the coverage of the Act to which Congress
clearly entitled them I
3 Cedars-Sinai Medical Center, 223 NLRB 251 (see my dissenting opin-
ion)