Albert Einstein Medical Center v. Pennsylvania Labor Relations Board

*102Dissenting Opinion by

Judge Crumlish, Jr.

I must respectfully dissent. I would hold that the recent amendments to Section 2(2) of the National Labor Relations Act, 29 U.S.C. §152(2), as amended, by Public Law 93-360 (a) 8, U.S. Cong. & Admin. News 444 (1974), effectively preempted the jurisdiction of the Pennsylvania Labor Relations Board (PLRB) to determine the appropriate collective bargaining unit of employees of non-profit hospitals such as Einstein Northern, and this Court lacks the power to review on substantive grounds that determination. Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U.S. 767 (1947); Pittsburgh Railways Company Substation Operators and Maintenance Employees’ Case, 357 Pa. 379, 54 A.2d 891 (1947). “The clear implication of the decision of the Supreme Court of the United States in Bethlehem Steel Co., et al. v. New York State Labor Relations Board, supra, is that whenever the employer-employee relationship is one over which Congress has the power of regulation and with regard to which Congress has acted, state power is suspended and cannot constitutionally be exercised. To permit the exercise of state power in such circumstances would effectively negative the supremacy of Congressional legislation.” Pittsburgh Railways Company Substation Operators and Maintenance Employees’ Case, 357 Pa. at 386, 54 A. 2d at 895.

Although the PLRB asserted jurisdiction over Einstein Northern well before the effective date of the federal amendments, I cannot comprehend what real liabilities or obligations would be affected by quashing the state certification proceedings. Interestingly, it is not Einstein Northern but the Professional Pharmacists Guild of Delaware Valley (Guild) which presses for preemption, though it is the Guild which arguably benefits from the outstanding certification order. Were we dealing with unfair labor practices occurring and administratively adjudicated prior to the inclusion of non*103profit hospitals within the jurisdiction of the National Labor Relations Board, I could find some justification in transitional jurisdiction. But our affirmance of the PLRB’s certification order does not give that agency any further power to enforce its order. Should Einstein Northern hereafter refuse to bargain collectively with the Guild, would the PLRB have the power to cite it for an unfair labor practice under Section 1201(a)(5) of the Public Employes Relations Act, Act of July 23, 1970, P. L. 563 (Act No. 195), as amended, 43 P. S. §1101.1201 (a) (5) (Supp. 1974-1975)? Would a state court have the power to enforce a PLRB order finding an unfair labor practice in light of the explicit federal preemption? Pennsylvania Labor Relations Board v. Frank, 362 Pa. 537, 67 A. 2d 78 (1949) answers these questions in the negative. I believe a continuation of the state proceedings to be an exercise in futility and counterproductive of a speedy resolution of the collective bargaining rights of the employees here involved and the right of Einstein Northern to bargain only with an appropriate unit.

Although I consider it inappropriate for this Court to consider the merits of this appeal for the reasons stated above, I feel constrained to reiterate my admonition of the dangers of overfragmentization, especially in hospitals such as Einstein Northern and other related health institutions. See my concurring opinion in Western Psychiatric Institute and Clinic of the University of Pittsburgh of the Commonwealth System of Higher Education v. Pennsylvania Labor Relations Board, 16 Pa. Commonwealth Ct. 275, 330 A. 2d 262 (1974). Such dangers include a total disruption and even discontinuance of vital health services by an employee unit small in number but critical to the operation of a functionally integrated medical team. Moreover, there exists the threat of stalements in bargaining and inter-unit confrontation brought about by the inability of an employer to gauge the bargaining demands or *104fiscal result of a byzantine patchwork of employe units. I say this because I believe that when units are too narrowly drawn, the bargaining process with the employer often becomes over-complex. Similar units seeking similar demands offer their respective proposals at disparate times which compel the employer and the work force to divert their energies from the work at hand to repetitive bargaining.

A consideration which also should not be overlooked is the situation whereby units, which might have been consolidated, squabble among themselves when one is given a benefit by the employer which the other did not receive. Both of these hypothetical situations and others contemplated but not delineated here, are the result of overfragmentization and should be avoided if the objective of Act No. 195, to maintain “peace in the relationship between public employers and their employees and the reduction in the number and duration of work stoppages in vital public services,” Western Psychiatric Institute, and Clinic of the University of the Commonwealth System of Higher Education v. Pennsylvania’s Labor Relations Board, 16 Pa. Commonwealth Ct. 204, 211, 380 A.2d 257 (1974), is to be attained.

In the present case, we have a unit of eleven pharmacists represented by the Guild. There can be no doubt that there is “an” identifiable community of interest among all pharmacists. Likewise, there is “an” identifiable community of interest among all laborers in a factory. The key word is “an” in the phrase, and it represents a question of degree and specificity in constructing the unit. It is quite possible that two individuals running the same machine, one of whom pulls a left hand lever and the other a right hand lever, could be said to have a different interest insofar as the work performed is concerned. This exaggerated example points to the potential absurdity of overspecificity in constructing a unit. Undoubtedly there are certain interests common *105only to pharmacists, but in my opinion, they are not so distinguishable from those of the other professional employees in the hospital who could be included in such a unit, to warrant the sanction of a separate pharmacists’ unit.