Jackson County Public Hospital v. Public Employment Relations Board

PUBLIC COUNTY JACKSON

HOSPITAL, Appellee, RELATIONS

PUBLIC EMPLOYMENT

BOARD, Appellant.

No. 62347.

Supreme Iowa. Court of

June 1979.

Russell L. Samson and David H. Goldman of Rogers, Phillips Swanger, Moines, & Des appellee. ALLBEE, Justice. appeal

This brought by has been the Pub- lic Employment Relations Board to contest a district court decree which reversed the PERB’s decision that it had over the food service workers at Jackson County Hospital. Public hospital has cross-appealed, contending that the district court should reversed the PERB for more reasons than it did. The substantive dispute hospital in the case is whether the guilty prohibited was certain practices firing of two food service workers. County Jackson Hospital Public is a facility employs approxi- health care mately people. stipulated It is that the hospital public employer is a within the meaning Employment of the Public Rela- Act, 20.3(1), tions The Code. The has, years, for a number of con- Services, Inc., tracted with A.R.A. for the provision of all food services on cost-plus corporation basis. A.R.A. is a Delaware principal Philadelphia, with its office in Pennsylvania, provides similar food services to various institutions over much of country. con- circumstances out of which this troversy genesis arises have their in Janu- ary during month that of 1975. was that representative of the Hotel and Restau- Employees rant Interna- and Bartenders tional Union AFL-CIO wrote to the local manager recognition A.R.A. and demanded bargaining the union the collective as representative for food service workers. A representation petition concur- was filed rently with was that demand. The demand premise made on the that the food service workers were of A.R.A. and subject were thus Miller, Atty. Gen., Thomas J. Carlton G. Labor Relations Board. National Salmons, Gen., Atty. Asst. and N. Morrison Torrey Nancy Powers, D. Public Em- the union’s de- A.R.A. did not accede to ployment Board, Moines, hearing representation Relations Des for mand and a on the appellant. petition necessary. on In the decision violations, but held 2, 1975, find such April matter filed Director, jurisdiction because the PERB was without Regional acting on behalf NLRB’s pub- were not NLRB, service involved determined A.R.A. was food workers decision, par- both employees. within the mean- lic From this engaged not in commerce NLRA, ing opera- appealed. A.R.A.’s ties have intimately patient tions related to the were by several initially I. We are confronted hospital, care functions of the institution procedural Two of these been issues. jurisdiction. exempt which from NLRB is first has not. but the parties, raised representation petition The therefore was whether hos- A. The first dismissed. court was filed pital’s appeal district to the particularly hospital, at- parties, timely 20.11 estab- in a Section manner. great importance precise tribute to the rea- acting procedure filing and lishes the for sons for the NLRB’s action. We do not complaint. The upon prohibited a practice weight to those We do attach such reasons. 20.11, 20.11(5) final section subsections of note, however, appears that the decision a through 20.11(11), purport to establish have merely assumed that A.R.A. was the of obtaining judicial review means for workers, employer of the food service and practice prohibited PERB decision on specific findings made on no that issue. 20.11(5) provides complaint. that Section 1975, In May food service met any appeal the district court must be organizational filing and determined to continue days taken within ten efforts, appealed time under the this Iowa Public PERB order from. decision or Act, chapter 20, judicial Employment Relations provision This in conflict with hospital, through Code. its administra- provisions review the Iowa Administra- tor, Jensen, 17A.19(3), known opposition Act, Jon made tive section Procedure Code, filing unionization of food service workers. thirty days for allow are, petition judicial review. There of a for On June two food service who workers course, inconsistencies numerous other activities, participated organizational had methodology judicial between the review Phyllis Edson, Scott and Janice were called 20.11(5)-(11) and provided by section administrator’s office. is, however, It of sections and .20. 17A.19 administrator, There the with the food ser- clearly is most appeal deadline attendance, manager vice conducted importance in this case critical because the what is referred to as the “termination review was hospital’s petition judicial for interview.” The two were informed that twenty- filed on November they longer posi- were no suited for their was filed day sixth PERB decision after the tions were given as diet aides and their on 27. October termination letters. Those au- letters were manager thored the food service and legislature that the appear would cosigned by hospital’s administrator. rapid perceived disposi a more need for questions arising tion of of labor-man out 26,1975, Finally, August on the American 20.13(3) agement also and disputes. §§ See State, County Municipal Federation of and 20.14(6) hearing 20.11 (applying the section AFL-CIO, Employees, acting on behalf bargaining appeal and unit procedures the discharged employees, prohib- filed the representa bargaining determinations and practice ited complaint which this initiated determinations). very 17A.19 tive Section alleged complaint action. The that Scott however, clearly provides, is the and discharged Edson were activi- union obtaining judicial re exclusive ty means of discharges and that the violated sections action, express “[ejxcept as view of 20.10(2)(a), (b) (d). The hearing officer ly provided by another statute prohibited otherwise prac- the PERB found that ” tices, 20.10(2)(a) referring sections chapter by violations of this name (d), review, There is no Iowa Adminis judicial had occurred. mention of the On agreed district court trative in section 20.11. PERB could Procedure Act There is certainly express provision no court’s review under section 17A.20 is limit- section 20.11 should be followed instead of determining ed to whether the district court section 17A.19. While we are troubled reasonably applied proper legal stan- disparity this in view of the fact that 17A.19(8). dards of section PERA and the IAPA were both before the Department Hoffman v. Iowa time, see, legislature e.g., at the same Transportation, 257 N.W.2d (At p.m. February H.J. 723 1:20 on 1977), this court being recited its task as “to special for the order of business considera- specified review the record in the manner IAPA, tion of House File 17A.19(7) judicial and make anew the permit deferred to continued debate on 17A.19(8).” specified determinations in § PERA.), File Senate we are This rule has been reiterated several language confronted the clear See, occasions. subsequent e.g., Davenport language says. 17A.19. That means what it Community v. School District Iowa Civil E.g., City Davenport PERB, Commission, 907, Rights 277 N.W.2d (Iowa 1978). N.W.2d Section (Iowa 1979); Employment Davoren v. Iowa governed filing 17A.19 the and course of Commission, Security 277 N.W.2d 603- judicial review in the district court. See (Iowa 1979); Taylor Department of Stohr, (Iowa PERB v. 279 N.W.2d (Iowa Transportation, 260 N.W.2d 1979). petition timely The was filed. 1978). question appear The does not any these been a serious issue in of hospital contends that the B. cases. itself, district court erroneously limited provides: Section 17A.20 when considering whether alleged pro the Appeals. adversely aggrieved or An practices shown, hibited had been ato con party judicial pro- the review affected sideration of whether the PERB’s ceeding may any obtain a review of final supported by substantial evidence in judgment of the district court under this the record made before agency the when chapter by appeal supreme to the court. record is viewed as a whole. See The appeal shall as in other civil be taken 17A.19(8)(f). argument is that the cases, although appeal may the be taken district court should have determined regardless of the amount involved. whether the applied preponderance PERB of the evidence test to find the elements of cases,” court sits In “other civil this prohibited practice each provided by as sec R.App.P. 4. to correct errors of law. Iowa 20.11(9). tion 20.11(9) But purports section Thus, IAPA, duty, under the this court’s to be a judicial statement of standards for by the to correct errors of law made district findings review of PERB prohibited on court. practice And, complaints. just as we have court, when exercis But the district explained, this governed ease was in the by section ing powers the conferred on district court section 17A.19. The dis 17A.19, ca acting appellate is itself in an trict court was therefore applying correct in specified law pacity to correct the errors of the substantial evidence test of section 17A.19(8). Iowa Public section Service 17A.19(8)(f). course, Of as also noted Commission, Co. v. Iowa Commerce State above, if apply, section 20.11 did hospi the 1978). Thus, 263 N.W.2d tal would have complaint no basis for be when this court reviews a decision of petition, cause its 20.11(5), under section pursuant to section district court rendered would have days been filed sixteen late. 17A.19, the question the sole is whether Finally,

C. parties the law. correctly applied have raised a district court question determination, regarding scope this of this court’s order to make that review of a judi- applies district court’s decision on court the standards of cial review agency 17A.19(8) agency of action. PERB action to determine states being issue as conclusions are whether this whether this court’s two given case either of isdiction in court. If the same as those the district same, has no may are affirmance is in because it conclusions reasons. It decline not, they may If reversal be on statutory may order. are or it decline jurisdiction, admits, required. discretionary grounds. hospital must, on as it that a declination based Having disposed preliminary these statutory jurisdiction would absence of matters, the merits we now move to however, claims, preemption. foreclose parties’ contentions. case decision representation that the NLRB II. The issue of whether PERB has had April the NLRB 1975 found jurisdiction may be in this case broken into statutory to assert jurisdiction but declined questions. two is whether The first discretionary basis. jurisdic- precluded asserting PERB is Relations Relying v. Utah Labor on Guss preemption tion federal labor law Board, L.Ed.2d 77 S.Ct. field. Because it that the PERB is is clear interven- (1957), insists precluded, proceed not so we must tion forbidden a state question, second which is whether statutory jurisdiction, NLRB existence of gives PERA the PERB over the spite of NLRB declination on discretion- County food service at Jackson workers ary grounds. Hospital. Public Analysis preemption A. the NLRB’s declination The basis of begin recognition must with however, moment, the Guss is of no because employee complains rule that where an long upon hospital rule which the relies no employer conduct constitutes an un which vitality, having supplanted er has any been 8(a) practice fair labor under section the of in to the NLRA. by 1959 an amendment NLRA, 158(a), 29 even though U.S.C.A. § Street, Amalgamated Elec Association of allegation the is not made in the form anof v. Employees tric Motor Coach Railway & practice unfair complaint, labor the NLRB 274, 315-16, Lockridge, 91 S.Ct. jurisdiction. has exclusive Diego San (1971) 1909, 1932, 29 L.Ed.2d Building Garmon, Trades v. 359 Council (White, J., dissenting). year, In Con (1959). 79 775 U.S. S.Ct. 3 L.Ed.2d gress 14(c)(2), 29 U.S.C.A. added section provisions 20.10(2)(a), (b) The of section 164(c)(2), provides: § (d), Code, The the closely provi resemble (2) shall be Nothing subchapter in this 8(a)(1), (2) (4) sions of section the or any agency prevent deemed to or bar Therefore, NLRA. conduct which is viola- , the from courts of State tive of the first would also be violative of asserting jurisdiction over assuming and second, the but the for the fact that PERA Board de- disputes labor over which the applies only public employees, group a clines, (1) paragraph of this pursuant specifically exempted the from NLRA. See subsection, jurisdiction. to assert 2(2) NLRA, 152(2). of the § 29 U.S.C.A. § quoted 14(c)(1), referred in the Section preemption might The thus an be statute, the provision gives is the very swered simply by determining whether juris- authority NLRB to decline to assert the employees public employ involved are discretionary grounds. also diction She on ees as by defined federal law. an Such Service, Inc., 240 Transportation National analysis case, applied cannot be to this how 64, 100 N.L.R.B. No. L.R.R.M. ever, because it adequately would not re (1979). Assuming represen- that the NLRB spond argument by to the hospi made the jurisdiction solely tation decision declined proceed, therefore, tal. We hospi on the 14(c)(2) discretionary grounds, on section questionable tal’s assumption that the com PERB. expressly action permits plaint alleged practices here unfair labor forbidden the NLRA. dispose of entirely does not This however, contention, Briefly stated, argument hospital’s preemption hospital’s that a may jur- hospital argues this: The NLRB also decline assert because the provisions jurisdiction repre pre- NLRB der the 20.4.” declination in As noted, sentation does not indicate necessarily viously parties agree case will public NLRB decline in is a hospital employer; no claim is practice Thus, an unfair labor case. the made that the food workers service are contends, alleged still facts exempted Therefore, under section 20.4. bring “reasonably controversy within our inquiry meaning must focus the NLRA” and the state phrase “employed by,” phrase which is must decline deference not defined in the Code.

NLRB. v. See Walles International Broth employ- The factors which establish Workers, erhood of Electrical 252 N.W.2d subject ment relation have been the of a (Iowa 1977). good development in the deal common the hospital cases which cites for the appropriate, law. therefore in the proposition represen- that a definition, declination in a statutory absence of to make use necessarily presage tation case does not body present of that in the common law declination in an unfair practice labor case Drake, ex rel. task. State Turner involving parties same support do 1976); not 4.1(2), N.W.2d § They such a rule. instead for the stand Code. that, proposition

different some cir- under conclusion is the histo This reinforced cumstances, may even who not ry “employee” definition of under right organize have the unions still into Initially, the NLRA the courts. federal right to be free of unfair labor Publications, Inc., NLRB v. Hearst practices. 111, 124, 851, 957, 88 L.Ed. U.S. S.Ct. fact, there is no difference in stan (1944), Court held Supreme dards used the NLRB to exercise “employee” must be the definition of jurisdictional representation discretion in history, “primarily drawn from the terms practice cases and in unfair labor cases. legislation.” purposes 14(c)(1) NLRA, See 29 U.S.C.A. § following excerpt H.R.Rep.No. 164(e)(1); Developing Labor Law 245, (1947) Cong., sum- 80th 1st Sess. at (C. 1971). Compare, g., Morris e. Congress, the marized reactions of Foods, Inc., Dominick’s Finer N.L.R.B. 156 by amending overruled Hearst and its test (1965), 60 L.R.R.M. 1565 enforcement NLRA, 2(3) section of the U.S.C.A. grounds, (7th denied on other 367 F.2d 781 152(3). § 1965) (section 8(a)(3) Cir. prac unfair labor “employee,” according to all An stan with, case) g., Supplies tice e. Carolina & dictionaries, according to the law as dard Co., Cement L.R.R.M. 122 N.L.R.B. it, according the have stated and courts (1958) (section 9(c) peti representation everyone, almost understanding case). tion exception the members of the with hospital’s is preemption claim with- Board, means National Labor Relations out merit. aBut that PERB is not hire. someone who works another for for precluded exercising jurisdiction by from But the case Labor Rela of National federal law not does end the matter. It Publications, Inc., tions Board v. Hearst still to be remains determined whether (322 88 L.Ed. 1170 U.S. S.Ct. law, PERA, given Iowa the has the PERB (1944)), the defini expanded the Board employees. over these beyond any “employee” of the term tion before, included that it ever thing had B. The question of whether the PERB upon Court, relying the Supreme the has and given been case must in this Board, up the “expertness” be 20.3(3), theoretic answered reference to section Code, case the Board the Board. In this “public employee.” held defines bought independent who provides: Employee’ held merchants ‘“Public newspapers publisher means and hired employed by public individual a from the “employees”. employer, except exempted sell be people individuals un- to them to simplified in could be preemption of federal the people merchants hired sell the and the many the PERB cases because “employees” of the mer- papers were using same test chants, holding to be both the but the merchants NLRB would be Thus, a pa- find- publisher determining employment. the the “employees” of for pers reaching. be particular group far must was most that a ing one board passed the presumed Congress public when a employed by employees is or not Act, it used to intended words Labor it the matter might well settle employer they when meanings that had have the Supervisors Board both forums. See act, new mean- Congress passed the not Transportation Chicago North Western and that, ings years later, Board the Labor Note, 1977); Co., N.W.2d law, always might up. In the there think Agency The Preclusive Effect State big a a differ- has been difference and Proceedings, 64 Findings Agency in Federal ence, “employees” “indepen- and between (1979). And as noted Iowa L.Rev. 339 “Employees” work dent contractors”. above, “employer” under the definition super- wages for or direct salaries under NLRA, 29 U.S.C.A. 2(2) of in section the “Independent vision. contractors” under- 152(2), public finding of a how job price, take to do for decide the NLRA. exception from would invoke done, usually the work will be hire others of an We therefore hold that existence work, depend and for their do PERA is to employment relation under the wages, upon upon income not but general reference be determined they pay for difference between what principles. goods, materials, they and labor and what before circumstances We now turn result, is, upon receive for the end the PERB proposed decision us. his profits. Congress, It is inconceivable findings of hearing detailed officer made act, passed it when authorized hospi- relationship of the regarding fact give act every Board to word workers. Because to the food service tal meaning whatever it wished. On picture findings present an accurate those contrary, then, Congress intended record, portions of them we out set now, give to intends the Board here. meanings not ordi- words far-fetched but Hospital past years nary To meanings. correct what [F]or Inc., (hereinafter re- Services, done, A.R.A. Supreme has Board what Court, A.R.A.) misplaced ferred have contracted putting upon to as reliance Hospital’s food ser- approved, Board’s expertness, has A.R.A. to direct the “independent . bill excludes contractors” . A.R.A. operation. vice “employee.” (Em- plus definition of paid per week dollar-for-dol- $200 phasis added.) in- expenses for all lar reimbursement necessary oper- service curred to food held, The in subsequently relying Court monthly Hospital ation. The receives part upon excerpt, this that the NLRB and billings expenses; all for itemized .... apply general courts were to return, in the serv- Hospital, The receives principles in determining the existence per- dietician who managing ices of a relation. NLRB v. United Co., 254, 256, supervising forms dual Insurance functions 88 S.Ct. 988, 989-90, (1968). em- approximately 19 L.Ed.2d 27 food service , Hospital’s is . . and . ployees, reasoning Apart just set chief dietician. out, however, adoption of the common law is service primary The function food agency tests will have two additional bene part provide patients meals to as First, fits. the PERB and Iowa courts will care, as Hospital’s as well patient overall of a body benefit substantial staff, employ- case other Hospital law from NLRB medical and federal courts service applying analogous patient those ees visitors. Food possibly tests And, second, Hospital’s organizational labor included in the situations. department chart Hospital requires as of the the managing dietician to correct , . . and is . considered by Mr. Jen- deficiencies. [, sen administrator,] as an Food employees paid weekly service are integral part Hospital’s operation. through checks issued A.R.A.’s Phila- department All employees are accounta- delphia office, use time sheets on which ble to the administrator and to their re- each employee records his or her time heads; spective department manag- worked and are not covered the Iowa ing dietician the head the food [is of] Employees Public System Retirement department. service (IPERS). Hospital employees Other are Hospital The exercises close day-to-day paid bi-weekly, use a time clock and are supervision over the depart- food service covered IPERS. ment. Mr. Jensen testified that he has Hospital The provides food requested particular food service em- employees service with uniforms and re- ployees not be scheduled to serve at cer- quires policies them to Hospital observe functions, , tain . . . has discussed lockers, concerning employee parking, with the managing patient dietician com- code, dress physical examinations. plaints concerning quality of food or Further, employees of the food service delivery, method of and has scheduled the department departmental attend meet- use of both food service facilities and ings with the administrator at which var- employees without conferring with the ious Hospital intra-departmental con- managing dietician. cerns are discussed. Hospital The possesses complete control Hospital The employee determines over all departmental staffing. Through fringe change benefits. . . [A] intra-departmental studies, management group coverage insurance for food service , . . . the Hospital proper ascertains only Hospi- was achieved after department staff levels. . [A] approval. tal service [F]ood December, 1974, study of the food service personnel Hospi- are transferred to other department department concluded the departments tal without loss in accrued determined, over-staffed and was benefits, seniority, fringe salary. or between the [hospital] administrator and managing dietician of the food ser- the food manager, service proper department authority, vice has the as do staff level through would be achieved heads, department purchase other Thus, attrition. any departmental staff necessary department’s op- items for the increase or decrease must Hospi- receive directly eration from individual vendors tal approval. or through Hospital’s purchasing All capital equipment used the food agent. managing dietician addition- service department is owned the Hos- ally, weekly meetings, par- attends staff pital. Hospital provides pest all ex- ticipates training Hospital in-service termination, trash removal and utilities programs and is a of several member necessary and incidental the prepara- Hospital committees, example, for delivery tion and major of meals. All counter-infection control committee.... changes menu are submitted to the Hos- dietician, managing depart- as a [T]he pital approval. opera- hours of head, ment required to accede to all tion of the food service department and procedures Hospital’s set forth in the Per- the prices cafeteria and for cafeteria and Manual, example, depart- sonnel for the patient meals, are determined the being operative step ment head an in the Hospital with Hospital retaining the all Hospital’s grievance procedure, and that income from operation. the food service any exception procedures those must to The Hospital additionally performs an an- Hospital approval. receive nual audit of all food service accounts and regularly conducts inspec- department scheduled All have the authori- heads department, , tions of the hire, . . . ty promote and discipline employ- to and control,” that predominant, but held departments. deed respective ees their within administrator, however, ignore that A.R.A. Hospital per- could not the role a sub- hiring process. played. performed Because A.R.A. forms an role in the active hiring Mr. the initial of food at least four occasions stantial amount of [0]n employees, personnel handled their job appli- service Jensen recommended certain checks, pay the Those records and issued their managing cants the dietician. “joint em- constrained to find subsequently PERB felt individuals were hired. conceding that it did not ployment.” While Department authority heads have the A.R.A., PERB over the discharge employee prior without hospital had that sufficient concluded the Nevertheless, approval. Mr. Jensen testi- control food service workers over the department in- the head would fied jurisdic- justify PERB’s an exercise of the discharge form him of the decision to tion. for the termination the reasons of] [and customary and it is for the adminis- hearing [that] the officer were If the decision department trator and the head to con- reviewed, being findings that his it is clear duct termination interview with the of section of fact would meet the standard employee being discharged. proce- This 17A.19(8Xf) and his that an conclusion Phyllis dure in was followed Scott employment between the relation existed discharge. Additionally, Janice Edson’s hospital and food workers would also See, Scott and Edson’s termination letters re- scrutiny. e.g., survive NLRB v. Dea department’s ton, flect the service Inc., (5th food adher- Cir. F.2d Hospital’s 1974) (criteria ence to employment official termination rela finding for stated, control, policy. include, among things, The letters inter alia: tions other declarations, parties’ provi contractual “It is felt administration of entrepreneu fringe sion of and the benefits Hospital employee this does not Re arrangement); rial character of fully requirements meet (Second) of Agency statement 220 (1958); § position of diet aide should there- right (specifying d control or id. Comment fore in employment be terminated from control). Hospital. Her court, however, vacation and two weeks severance The district under section pay in 17A.19, lieu of two notice will be weeks agency was to review the final ac- forthcoming compliance Hospi- with this case tion. The final action in procedures." (emphasis [by tal added the PERB on the decision rendered hearing officer]). appeal hearing proposal. from the officer’s 17A.15(3). See was to § The district court Finally, although depart- consequences review and consider power grant ment heads have the “joint employment.” finding PERB’s wage increases to within their And, 17A.19(8)(f), the district under section respective departments, Hospital finding court’s conclusion that the PERB’s approves board of trustees and sets is adequately supported by the record was salary cost-of-living grants schedule and Therefore, only question correct. department personnel. increases to all given to remains is what effect should be salaries, therefore, Food service conform “joint employment” finding. the PERB’s to those Hospital. established assumption Was the PERB’s (Footnotes omitted.) “joint employment” after findings hearing From these officer See statutory authority? excess of concluded that controlled the 17A.19(8)(b). operation, personnel management condi- tions of labor law employment” of the food services “Joint concept application and that it was employer. therefore the On often finds appeal, See, agreed administrative the PERB bargaining e.g., unit determinations. the hospital “significant, Greyhound in- Corp., exercised Boire v.

435 Inns, Inc., 528, In (1964); Ohio 205 N.L.R.B. S.Ct. 11 L.Ed.2d 849 S. S. NLRB, (6th Kresge (1973), Go. v. 416 F.2d 1225 recognized Cir. L.R.R.M. 1005 the NLRB 1969); NLRB, Gallenkamp Stores Co. v. jurisdiction only pair one of a over (9th 1968); County F.2d Cir. joint employers inadequate. In that County Ulster CSEA Unit of the Ulster case, Inns, Inc., Ohio contracted with Department, Sheriff’s 37 A.D.2d lodge in a state operate State of Ohio to (1971). applies N.Y.S.2d to situations park. had The NLRB found that State in which employers each of two has such of the labor retained such extensive control significant control over the essential ele joint employ- that was at relations least ments group of labor relations with a er of the Inns. Because Ohio bargaining workers that collective which exempt jurisdic- the State was from NLRB did employers not involve both would be NLRA, 2(2) tion under section of the ineffective. Kresge, S. 416 F.2d at 1230. S. 152(2), U.S.C.A. the NLRB refused to employers the usual case both would be jurisdiction. assert subject appropri ate labor board. We rationale of Ohio Inns find the reject the compelling. to be the more We case,

This is not the usual however. Here adoption Harvey PERB’s of Herbert be subject public employer, is a cause it is NLRA, internally inconsistent to find exempt the PERA but joint employment, while means that both private employer, subject A.R.A. is a to the NLRA exempt employers participate bargain from the PERA. in the must occur, Our attention has been directed to two ing meaningful negotiations to cases in which the NLRB was forced to deal one of then hold in the same case that joint employment with a involving situation employers the two has sufficient control exempt employer: one Harvey, Herbert itself, negotiations. engage, by in effective NLRB, U.S.App.D.C. Inc. v. PERA does not We therefore hold that the Inns, (1969), Inc., F.2d 770 and Ohio jurisdiction in authorize the PERB to assert (1973). N.L.R.B. 84 L.R.R.M. 1005 joint employment situation where one joint public employ employers is not a Harvey,

In Herbert which the PERB re neces upon jurisdiction, govern only lied er. Power to one of two find the court of appeals the PERB bargaining sary enforced an NLRB or is insufficient for employers der corporation provid directed to a regulatory function. perform janitorial ed services for the World Bank. concluding correct in district court was exempt jurisdic bank was from NLRB authority, statutory the PERB exceeded its and, tion on an earlier appeal, the court of 17A.19(8)(b), assuming juris see section appeals had held that the bank and Herbert dispute. diction over this Harvey joint employers. were The order to jurisdictional issue disposition Our bargain enforcing and the decision it were prac- prohibited makes consideration of the finding based on the Harvey that Herbert unnecessary. tice claim had sufficient authority wages, over hours AFFIRMED. and other employment conditions of to be capable bargaining. of effective

App.D.C. at 424 F.2d at 775. HARRIS, UH except All Justices concur LARSON, LENHOPP, McCORMICK, and Harvey, however, Herbert involves a con- JJ., who dissent. “joint tradiction in terms. The employment” directly contradicts find- HARRIS, (dissenting). Justice ing employer that one has sufficient control I, scope of discussing I. our In division over the effectively relation to review, apparent majority recites with bargain on a solo basis. If the situation is Transp., approval Dept. v. Iowa truly “joint NLRB, Hoffman employment,” one of or PERB, 1977). But 257 N.W.2d only over one of the two employers appears to be a inadequate. majority applies then what evidence was substantial I believe there again I scope would different of review. as to support determination PERB’s that, appeal clear when an is taken make it Ac- its hospital’s employees. over 17A.20, control give we no us under jurisdic- can cordingly, PERB assert I think the district court’s re special deference to hospital. tion over the we always view action. And court’s determination of review district record, finding the whole I believe On law, reasonableness, but for not accura sup- was by PERB prohibitive practices cy. TeKippe, 260 Kurtenbach v. N.W.2d I would evidence. ported by substantial (Iowa 1977). affirm. agree I cannot that the district court II. UHLENHOPP, McCORMICK, LAR- was right holding PERB without SON, JJ., join in this dissent. jurisdiction. clear that the N.L. It seems coverage not R.B. does claim under operations private

national act if of a

employee subject are with and intertwined exempt governmental the control sub- Co.,

divisions. J-CE 205 N.L.R.B. Sis-Q Flying Service, (1973);

L.R.R.M.

Inc., 80 L.L.R.M. 1315 N.L.R.B. (1972). joint employment Once found to Iowa, Appellee, STATE exist, question whether becomes public employer’s employment over control v. provisions is such that statute McGHEE, Jr., Appellant. Curtis William efficaciously applied. Compton can be No. 62210. America, Nat. Maritime U. of F.2d 1976). (1 agree majority Cir. I with the Supreme Court of Iowa. that the did sufficient control June 1979. over under this test. The dis- pute pre-empted by was not Rehearing July N.L.R.B. Denied 1979. disagree majority’s

I with the conclusion assumption jurisdiction,

that PERB’s af- joint employment,

ter exceeded

authority. question, I find this as do not majority,

does the to be one of law. majority cites two cases in the belief

they holdings stand for alternative

question: Harvey, Inc. v. R. Herbert N. L.

B., U.S.App.D.C. F.2d 770

(1969) Inns, Inc., and Ohio 205 N.L.R.B. (1973).

84 L.R.R.M. I believe that explored

both of these cases public employer’s

whether the control over

employment was such that the statute could efficaciously applied. ques-

be These were differing

tions not law but of fact. The

facts of in opposite those cases resulted

conclusions. not free We are to choose

between those factual opposite conclusions they present

in the belief alternative theo-

ries of law.

Case Details

Case Name: Jackson County Public Hospital v. Public Employment Relations Board

Court Name: Supreme Court of Iowa

Date Published: Jun 27, 1979

Citation: 280 N.W.2d 426

Docket Number: 62347

Court Abbreviation: Iowa