St. Luke's Hospital v. Industrial Commission

349 P.2d 995, 142 Colo. 28, 1960 Colo. LEXIS 625, 45 L.R.R.M. (BNA) 2953

• Court: Supreme Court of Colorado
• Decided: February 23, 1960
• Docket: 19150
• Status: Published

Opinions

Mr. Justice Frantz

delivered the opinion of the Court.

Is a charitable private hospital amenable to the collective bargaining provisions of The Colorado Labor Peace Act? This is the single but very important question which we need to resolve in this case.

The Industrial Commission of the State of Colorado determined that it had jurisdiction to conduct a bargaining unit election and that the employees described constituted an appropriate unit. In certiorari proceedings the district court agreed with the Commission and affirmed its determination. Feeling aggrieved, St. Luke’s Hospital seeks a reversal of the judgment.

St. Luke’s Hospital is a non-profit corporation organized under the laws of this state. It is organized to provide medical and surgical nursing or other care for sick, infirm, aged, injured or destitute persons; and to instruct and train suitable persons in the duties of nursing and attending upon sick, infirm, aged, injured or destitute persons; and to furnish the instruction and consolation of religion for those seeking its ministrations. Directing its affairs are the Bishop of the Colorado Episcopal Diocese and ten businessmen representing the community.

Evidence was introduced showing in what manner and to what extent these various corporate purposes had been carried out during the last fiscal year prior to the hearing. The number of those employed by the hospital and those working gratuitously was given. Among those employed were 147 persons whom the union sought to organize; 15 were in the engineering and maintenance department, 59 performed housekeeping duties, 27 worked in the laundry, and 73 were employed in the dietary department.

The Industrial Commission and the Building Service Employees’ International Union, Local No. 105, are aligned against the hospital in the latter’s efforts to secure a reversal of the judgment. Appearing as amicus curiae is the Colorado Hospital Association; its position parallels that of the hospital. Each side would parry the contention of the other with the same instrument, The Labor Peace Act.

The first section of The Labor Peace Act (C.R.S. ’53, 80-5-1) is a declaration of policy. So much of the section as throws light on the immediate problem is quoted:

“The public policy of the state as to employment relations and collective bargaining, in the furtherance of which this article is enacted, is declared to be as follows:

“ (1) It recognizes that there are three major interests involved, namely: That of the public, the employee, and the employer. These three interests are to a considerable extent interrelated. It is the policy of the state to protect and promote each of these interests with regard to the situation and to the rights of the others. ']

“(2) Industrial peace, regular and adequate income for the employee, and uninterrupted production of goods and services are promotive of all these interests.”

Necessary also to a proper resolution of our problem are parts of C.R.S. ’53, 80-5-2, having to do with definitions, and we quote:

“When used in this article:

“(1) The term ‘person’ includes one or more individuals, partnerships, associations, corporations, legal representatives, trustees or receivers.

“(2) The term ‘employer’ means a person who regularly engages the services of eight or more employees other than persons within the classes expressly exempted under the terms of subsection (3) of this section, and includes any person acting on behalf of any such employer within the scope of his authority, express or implied, but shall not include the state or any political subdivision thereof or any carrier by railroad, express company or sleeping car company subject to the Federal Railway Labor Act, Title 45 U.S.C.A., or any labor organization or anyone acting in behalf of such organization other than when it or he is acting as an employer in fact.

“(3) The term ‘employee’ shall include any person, other than an independent contractor, domestic servants employed in and about private homes and farm and ranch labor, working for another for hire in the state of Colorado in a non-executive or non-supervisory capacity, and shall not be limited to the employees of a particular employer unless the context clearly indicates otherwise; * * * ”

Of importance, too, is the major part of C.R.S. ’53, 80-5-11 (2), which is as follows:

“Where, as provided by this article the exercise of the right to strike by the employees of any employer engaged in the state of Colorado in the production, harvesting or initial processing, the latter after leaving the farm, of any farm or dairy product produced in this state would tend to cause the destruction or serious deterioration of such product, the employees shall give to the commission at least thirty days’ notice of their intention to strike, and in the case of employees in all other industries or occupations, at least twenty days’ notice of their intention to strike, and the commission shall immediately notify the employer of the receipt of such notice.

Finally, we should consider C.R.S. ’53, 80-5-18, which provides:

“Wherever the application of the provisions of other statutes or laws conflict with the application of the provisions of this article, this article shall prevail, provided that in any situation where the provisions of this article cannot be validly enforced, the provisions of such other statutes or laws shall apply.”

In construing the scope and effect of a statute we seek out the intent of the legislature in voting its passage. Perhaps the best guide to intent is the declaration of policy which frequently forms the initial part of an enactment. Declarations of policy stated in labor legislation have been persuasive with the courts in regard to the intended coverage of the acts.

A generally accepted view of the import of such declaration of policy is found in the case of Roth v. Local Union No. 1460 of Retail Clerks’ Union, 216 Ind. 363, 24 N.E. (2d) 280:

“To ascertain the intent of the legislative body that enacted a statute is the fundamental rule for its judicial construction. When the purpose of an act is expressed in clear and unambiguous terms, this must be accepted as the solemn declaration of the sovereign. The public policy of the state is a matter for the determination of the legislature and not for the courts. The statute here under construction declares that it is the public policy of this state that the individual unorganized worker shall be free to decline to associate with his fellows and that he shall be free from interference, restraint, or coercion on the part of his employer.

The quotation was adopted verbatim in the leading case of Gazzam v. Building Service Employees International Union, 29 Wash. (2d) 488, 188 P. (2d) 97, 11 A.L.R. (2d) 1330. Various forms of industry are the subjects of, and subject to, The Labor Peace Act; this appears to be the intent and purpose of the act as set forth in the declaration of policy.

Is the operation of a hospital an industrial activity? If not, do the definitions contained in C.R.S. ’53, 80-5-2, quoted above, bring the hospital within the language and coverage of The Labor Peace Act? In answering these questions, we are persuaded to follow the decision of the Supreme Judicial Court of Massachusetts in the case of St. Luke’s Hospital v. Labor Relations Commission, 320 Mass. 467, 70 N.E. (2d) 10, rather than the case of Utah Labor Relations Board v. Utah Valley Hospital, 120 Utah 463, 235 P. (2d) 520, 26 A.L.R. (2d) 1012.

The following language from the Massachusetts case has a particular appeal to reason:

“A hospital, like the plaintiff, whose doors are open to those needing medical and surgical treatment for which no charge is made to those unable to pay, and which depends for its support and maintenance upon the fees of patients and gifts and donations and cares for recipients of public welfare sent to it by the city at reduced rates and is conducted in the interests of the general public and strictly as a non-profit organization, is a public charity. [Citing cases.] Such a hospital is not conducting a business or commercial enterprise. It is not engaged in industry and trade. [Citing cases.] The agreed facts show that the sole activity of the plaintiff is the maintenance of its hospital, and the services of its nonprofessional employees, for whom the union seeks certification as their bargaining agency, are directed to the maintenance of the hospital itself. We need not consider what the relationship of the hospital to industry and trade would be if it were engaged in commercial undertakings, as the care and letting of realty or the conduct of a mercantile establishment, for the benefit of the hospital and employed persons in such undertakings. [Citing cases.]

“But it is urged by the commission that a hospital comes within the definition of an employer, and is not expressly exempted because the word as defined in section 2 includes ‘any person acting in the interest of an employer, directly or indirectly, but shall not include the commonwealth or political subdivision thereof, or any labor organization,’ with certain exceptions. It is contended that, specific exceptions having been expressly mentioned, no other exemptions are to be supplied by implication. This contention rests upon a familiar principle of statutory interpretation. [Citing cases.] But the entire chapter in which the definition appears must be construed as a whole, and the question is not whether a hospital is expressly exempted but whether a hospital comes within the sweep of the chapter in the light of its declared underlying and predominant aim and object. [Citing cases.] In passing it might be noted that the express exemption of the Commonwealth and cities and towns might have been inserted to free them from being affected by the chapter because of such operations, commercial in character, as the distribution and sale of water, electricity and gas. An interruption of these services might substantially affect industry and trade.

“It is true that the employees whom the union sought to represent were engaged in various kinds of manual labor, some of which were similar to those performed in hotels; but if the nature of the work itself is similar, the relationship of the work performed in a hospital to industry and trade is different from the relationship that work performed in a hotel bears to industry and trade. [Citing cases.] It is also true that such services were essential to the maintenance of the hospital, and those rendering the services can hardly be said to be engaged in industry or trade.”

An additional and very important reason for holding The Labor Peace Act inapplicable to hospitals derives from the public policy of this state. An employee of a hospital has duties consensual in origin and nature arising from the contract of employment, and he further has duties nonconsensual in origin and nature, dependent nevertheless on a privity connected with, but not based upon, the employment contract. These nonconsensual duties are owing to the patients of the hospital. Thus, an employee of a hospital has dual duties: those which he ought to perform as an employee of the hospital, and those which are owing to the patients.

In the performance of these dual duties the same activities are generally effected. Hence, what is required to be done contractually is required also to be done non-contractually for the patients. And these obligations to the patients are not the moral duties which the “certain priest” and the Levite neglected to perform but which the Good Samaritan undertook. They are legal duties. Thus, the engineers of the hospital could not turn off machinery operating devices used by the hospital to sustain the life of certain patients; there is no question that in so doing they would act in dereliction of their duty.

Employees of a hospital, whether professional or nonprofessional, enjoy an employment status quite unlike most other employment relationships. Hospitals are dealing with persons who are third parties to the employees, and these third parties have by reason of circumstances a particular call on the solicitude of everyone connected with the operation of the hospital. Much of the labors of the hospital involve emergency and crisis; minutes of action may mean the difference between survival and death. To vest any organization with power to imperil efficient operation of such an institution is to give a power which no organization should want, or having it, should exercise.

Where, to live or not to live hangs in the balance; where, to enjoy health or not to enjoy health is precariously pendent; where, to be made whole or to perhaps become a permanent cripple depends on minutes; in a word, where the helpless or near helpless — the newborn babe, the halt, the hurt, the sick and the dying — resort to the hospital, the resolution of these alternatives should not be even indirectly in the hands of any group acting in concert. Granting that The Labor Peace Act is restrictive legislation, permitting concerted employee action after certain conditions have been complied with, the policy of this state cannot be said to sanction interference with, or disruption of, the normal and essential operation of a hospital by any concerted action of its employees.

On this score, the right to strike looms up as of particular importance. Although not before us, if it be granted that The Labor Peace Act applies to a hospital and its employees, we necessarily grant its application in all its parts, including the right to strike in compliance with the act. The attendant problems — the picket line and the prospective refusal of others not involved to cross the picket line to take necessary supplies to patients — would follow. Organized action against the hospital would result in organized action against those so unfortunate as to be patients therein at the time of such action.

Even beyond the precincts of a hospital if a person be placed in such a position concerning an ill, afflicted, infirm, or otherwise helpless person that his failure to exercise due care would cause injury to the unfortunate one, the law imposes a duty to act at once with a care commensurate with the circumstances with which both are confronted and to take no affirmative action which might result in endangering the helpless person or in augmenting his unhappy plight. Depue v. Flateau, 100 Minn. 299, 111 N.W. 1, 8 L.R.A. N.S. 485; L. S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E. (2d) 334; Union Pac. R. Co. v. Cappier, 66 Kan. 649, 72 Pac. 281, 69 L.R.A. 513; 2 Torts, Restatement of the Law, §324.

Such becomes the duty of one who volunteers to aid or protect a person rendered helpless through no fault of his own. So much more confirmed then is the duty of the employee of a hospital whose labors in some measure have to do with the ministrations' to sick and disabled patients of the institution.

This is not to say that an employee once hired by a hospital must remain so associated with it. There is a right in one “to work for or deal with, or to refuse to work for or deal with, any man or class of men as he sees fit.” Master Builders’ Ass’n v. Domascio, 16 Colo. App. 25, 63 Pac. 782. And generally what one person may lawfully do any number may do. Idem.

But there are exceptions to this general principle. Green v. Davies, 182 N.Y. 499, 75 N.E. 536, 3 Ann. Cas. 310. “There can be no independent tort for conspiracy unless in a situation where mere force of numbers acting in unison or other exceptional circumstances may make a wrong, and to prove a tort on the basis of mere force of numbers it must be shown that there was some peculiar power of coercion possessed by the combination which an individual standing in a similar relation to plaintiff would not have had. However, an organized body of men working together can produce results very different from those which can be produced by an individual without assistance, because of a greater power of coercion on the part of the combination, and may make oppressive and dangerous that which, if it proceeded from a single person, would be otherwise. The result of this greater power of coercion is that what is lawful for an individual is not the test of what is lawful for a combination of individuals. Accordingly in a great many cases the rule is laid down broadly that, while the act of an individual may not give rise to civil liability, yet the same act committed by several acting in concert may be unlawful and constitute an actionable wrong.” 15 C.J.S. 1002.

In this aspect of the case we hold that, if it is necessary to determine the primacy of policies, the public policy of The Labor Peace Act must yield to the public policy that its employees may not in concert take any action detrimental or inimical to the welfare of patients of a hospital.

Applying the law enunciated above to the facts before us compels the conclusion that the judgment must be reversed.

Judgment reversed.

Mr. Justice Day specially concurs.

Mr. Justice Moore and Mr. Justice Doyle dissent.