THE MEMORIAL HOSPITAL vs. LABOR RELATIONS COMMISSION & another [Note p643-1] (and a companion case [Note p643-2]).

WILKINS, C.J. The Labor Relations Commission of the Commonwealth and the intervening union appeal from final decrees entered by order of a court of three judges of the Superior Court appointed pursuant to G. L. c. 212, Section 30 (inserted by St. 1959, c. 600).

The three-judge court reviewed the orders and decisions of the commission pursuant to G. L. c. 30A, Section 14, as required by the State Labor Relations Law, G. L. c. 150A, Section 6 (e) (f), as respectively amended through St. 1954, c. 681, Sections 10, 11. The appeals relate to two cases before that court, in both of which the International Union of Operating Engineers, AFL-CIO, was allowed to intervene:

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A. Case numbered 772 Equity, The Memorial Hospital v. Labor Relations Commission, for judicial review of orders of the commission, dated June 21, 1965, and September 22, 1965, sought a determination whether the commission had jurisdiction to act upon (1) a petition to the commission by the union for certification of the union as collective bargaining representative of all licensed firemen employed by the hospital, or (2) a complaint of the union that the hospital was engaging in unfair labor practices as defined in c. 150A.

B. Case numbered 785 Equity, Labor Relations Commission v. The Memorial Hospital, under c. 150A, Section 6 (e), for enforcement of the order of the commission dated September 22, 1965, respecting unfair labor practices.

The final decree in each case provided "That the decision and orders of the Labor Relations Commission dated September 22, 1965 in the matter of the International Union of Operating Engineers, AFL-CIO versus The Memorial Hospital and the order of certification by the Commission dated June 21, 1965 relating thereto be and the same are hereby set aside in whole as in excess of the statutory authority and jurisdiction of the Labor Relations Commission." The final decree in case No. 785 also provided that the petition be dismissed. The commission appealed.

The basic issue is whether G. L. c. 150A, as amended through St. 1964, c. 576, entitled, "An Act to extend the coverage of the state labor relations law to include health care facilities and certain nurse employees thereof," applies to all employees of a "health care facility" or is limited to nurses, as its title would seem to imply. See Cumberland Farms, Inc. v. Milk Control Commn. 340 Mass. 672, 678.

As stated in the decision of the three-judge court, specifically involved are issues as to the commission's jurisdiction under c. 576 (1) to certify the union as the collective bargaining representative of the licensed stationary firemen employed by and at the hospital in Worcester; (2) to order and conduct an election among the firemen which resulted in the designation of the union as their collective bargaining representative; and (3) upon complaint of an unfair labor

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practice against the hospital by the union to issue cease and desist orders for refusal to bargain collectively.

In Saint Luke's Hosp. v. Labor Relations Commn. 320 Mass. 467, it was held that under G. L. c. 150A, as it then read, "a hospital which is organized and conducted as a public charitable institution is not covered by the act" (p. 474). We there said: "Our act impliedly excludes from the commission jurisdiction over matters not affecting industry and trade. Indeed, Section 5 (c) of our act, under which the application for certification was filed by the union, provides that `Whenever a question affecting industry and trade arises concerning the representation of employees, the commission may investigate such controversy and certify to the parties, in writing, the name or names of the representatives who have been designated or selected'" (p. 471). "Such a hospital is not conducting a business or commercial enterprise. It is not engaged in industry and trade" (p. 472).

A number of changes in c. 150A were made by St. 1964, c. 576. As the decision of the court of three judges correctly stated, there is no question that c. 576 "was intended to extend the rights and privileges of the labor relations act to nurses, both registered and practical nurses (excepting members of religious orders) employed by a `health care facility,' giving such nurses the right to organize and select collective bargaining representatives of their own choosing and providing for arbitration of disputes and grievances arising between health care facilities and their nurse employees if they could not be adjusted through collective bargaining."

The three-judge court held that The Memorial Hospital is a "health care facility" as that term is defined in c. 150A, Section 2 (10), inserted by c. 576, Section 3, and that it "is essentially a public charity like Saint Luke's Hospital as that hospital is described" in 320 Mass. 467. It is a nonprofit general hospital catering to patients generally and providing medical and surgical treatment for which no charge is made for those unable to pay. It treats all patients. It depends for its support on patients' charges, gifts, donations, and receipts

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from public welfare agencies of local, State, and Federal governments. Its operating deficit is cared for from income or other distributions from endowment funds. It has facilities for 350 beds, employs 800 persons, 500 being full-time and 300 part-time employees. Among these are 150 registered nurses, 75 practical nurses, 100 nurses' aides, and 100 nurses' helpers. Four hundred do not perform nurses' duties, if these duties are considered to mean direct care of patients. It employs laboratory analysts, laboratory assistants, and other people of like skills, dietitians, cooks, bakers, kitchen help, carpenters, painters, maintenance people, laundry workers, and seven stationary firemen. The firemen operate the steam boilers and compressors, which supply hot water, distilled water and steam used for sterilization, laundering, preparation of food, dishwashing, heating, cleaning, air conditioning, and other hospital needs. In general, the whole hospital, its staff, operations, and problems do not differ significantly from those of any other general hospital of 350-bed capacity.

The commission lays great store by Section 2 (10) (11) inserted by c. 576, Section 3. [Note p646-1] Its argument that the hospital is an employer within the meaning of the statute fails to recognize the real question, which is who are the affected employees. In Section 2 (3), as amended by c. 576, Section 2, [Note p646-2] there were added the

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words, "and shall include any nurse employee of a health care facility." The omission to mention other employees is most significant. It must be remembered that under the Saint Luke's Hospital case, decided in 1946, the commission had no jurisdiction over any employees whatsoever of a hospital like The Memorial Hospital. A heavy burden rests upon any who would overturn that decision upon the simple fact that c. 576 extends the scope of c. 150A to embrace nurses. We are reluctant unduly to protract our opinion in order to refute other arguments put forth to sustain that burden, particularly where the decision of the three-judge court has convincingly answered those arguments.

A new paragraph was added at the end of c. 150A, Section 1, by c. 576, Section 1. [Note p647-1] This contained four clauses, of which (a), (b), and (d) referred to "nurse employees" only. In this aspect, the three-judge court made the sound observation that "nowhere in the section is it declared to be the policy of the Commonwealth to promote collective bargaining with all hospital employees as is specifically declared for nurses in clause (a) of the section." As was said by Mr. Justice Ronan in the Saint Luke's Hospital case (p. 474), "The policy limits the scope of the act."

Final decrees affirmed.