St. Francis Hospital

National Labor Relations Board - Board Decisions

Dec 16, 1982

265 N.L.R.B. 1025 (N.L.R.B. 1982)

ST. FRANCIS HOSPITAL
St. Francis Hospital' and International Brotherhood
of Electrical Workers, Local Union No. 474,
AFL-CIO, Petitioner. Case 26-RC-6109
December 16, 1982
DECISION ON REVIEW AND
DIRECTION
On November 5, 1979, following a hearing held
before Hearing Office Timothy J. O'Leary to de-
termine whether the employees in the petitioned-
for unit constituted an appropriate unit for bargain-
ing, the Regional Director for Region 26 issued his
Decision and Direction of Election in the above-
entitled proceeding. He found appropriate a unit
consisting of all the Employer's maintenance em-
ployees, including several employee classifications
not encompassed in the Petitioner's proposed unit,2
and rejected the Employer's proposed inclusion of
all its service and maintenance employees. He di-
rected that an election take place among the em-
ployees in said unit.
Thereafter, in accordance with Section 102.67 of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Employer
filed a timely request for review alleging that the
Regional Director erred in his findings. On Decem-
ber 4, 1979, the National Labor Relations Board by
telegraphic order granted the Employer's request
for review. Thereafter, the Petitioner filed a brief
on review. Subsequently each of the parties also
filed statements of position.
The Board has considered the entire record in
this case, with respect to the issues under review,
including the various briefs filed by the parties, and
makes the following findings:
The Employer operates a 529-bed hospital in
Memphis, Tennessee. The hospital employs ap-
proximately 1,300 employees. There are approxi-
mately 39 employees in the maintenance classifica-
tions and approximately 438 employees in the com-
bined service and maintenance categories.
The maintenance employees are grouped in 4 of
the Employer's 90 departments: mechanical and
maintenance, building maintenance, grounds main-
The Board was informed that on February 29, 1980, by action of the
Employer's board of directors, the name of the Employer was changed
from St. Joseph Hospital East, Inc., to St. Francis Hospital.
2 The unit found appropriate consisted of:
All maintenance employees, including communications technicians,
painters, carpenters, maintenance helpers, x-ray processor mechanic,
refuse and linen collectors, utility operators, cabinet makers,
painter/vinyl hanger, HVAC trainee, HVAC mechanic, boiler oper-
ators, electronics technicians, electricians, general maintenance me-
chanics, pneumatic tube mechanic, groundskeeper, utility mechanic,
refrigeration mechanic, and plumber employed by the Employer at
its hospital at 5959 Park Avenue, Memphis, Tennessee, excluding all
other employees, including office clerical employees, Bio-medical
Engineering Department employees, service employees, guards and
supervisors as defined in the Act.
265 NLRB No. 120
tenance, and boiler plant operations. The employ-
ees working in these four departments include six
general maintenance mechanics, one electronics
technician, two carpenters, two painters, one
plumber, three electricians, six boiler operators, one
painter/vinyl hanger, one X-ray processor mechan-
ic, two cabinetmakers, one pneumatic tube mechan-
ic, one utility operator, one refrigeration mechanic,
two communication technicians, one HVAC me-
chanic, one HVAC trainee/helper, one utility me-
chanic, two maintenance helpers, one grounds-
keeper, and three refuse and linen collectors. While
most of these employees spend the majority of
their time making on-location repairs throughout
the hospital, they are supervised separately from
other employees and receive their daily work as-
signments only from their department supervisors.
Maintenance employees possess specialized skills
and experience. The Employer provides both on-
the-job training and formal technical courses de-
signed to enhance these skills. Reflective of their
greater skills is the fact that maintenance employ-
ees' wages are concentrated in the higher ranges of
the Employer's service and maintenance pay plan.
Relying on these attributes and the Board's deci-
sion in Allegheny General Hospital,3 the Regional
Director found that the maintenance departments
constituted a well-defined complement of employ-
ees, possessing a community of interest sufficiently
separate from the service department workers to
warrant their separate bargaining unit status. How-
ever, the Employer asserts that a unit encompass-
ing both service and maintenance employees is
more appropriate. The Employer contends that the
courts have rejected the unit approach of Allegheny
General, supra, and that legislative history and the
language of the 1974 health care amendments to
the National Labor Relations Act4 support its
view.
In Allegheny General, supra, the majority opinion
outlined, in great detail, the legislative history of
the 1974 health care amendments and concluded
that Congress never intended to preclude the
Board's use of traditional community-of-interest
criteria in determining health care employee units.
We announced that community-of-interest stand-
ards, as set forth in American Cyanamid Company,5
would be applied to health care maintenance em-
ployee unit determinations. American Cyanamid did
not involve a health care employer, but rather
dealt with the factors tending to establish that the
maintenance employees therein had demonstrated a
3 239 NLRB 872 (1978), enforcement denied 608 F.2d 965 (3d Cir.
1979).
4 Public Law 93-360, 93d Cong., S3203, 88 Stat. 395.
131 NLRB 909 (1961).
1025
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distinct community of interest sufficient to warrant
their own bargaining unit, separate from the pro-
duction employees; i.e., level of skills; amount of
work integration with production employees;
degree of interchange between production and
maintenance departments; degree of shared supervi-
sion; and location of the maintenance department.
Applying these factors to the factual setting in Alle-
gheny General, the Board found that the mainte-
nance employees at that hospital should be granted
their own unit.
However, upon the hospital-Employer's petition
for review of that decision the Third Circuit Court
denied enforcement. The court held that the
Board's analysis failed to comply with earlier hos-
pital unit cases in which the court stated that: (1)
The Board is precluded under the National Labor
Relations Act from extending comity to a unit cer-
tification granted by a state labor relations authori-
ty;" (2) the legislative history of the 1974 health
care amendments prohibits the Board from finding
appropriate separate units of maintenance and pow-
erhouse employees at health care institutions; 7 and
(3) the 1974 amendments also preclude the Board
from relying on its traditional community-of-inter-
est criteria in making unit determinations in the
health care industry. 8 The court criticized the
Board's apparent disregard for the role of judicial
review in the development of labor policy through
statutory interpretation and reiterated its adherence
to the position that health care cases require a unit
determination standard different from non-health
care cases.
In effect the court told the Board that it has an
obligation to enunciate a workable health care
maintenance unit determination test in which the
long-established community-of-interest criteria are
balanced against the legislative concern about over-
proliferation of health care bargaining units. Some-
thing more specific than a mere verbal acknowl-
edgement that we have considered the legislative
history in reaching our decisions is required.
While we attempted in Allegheny General to ac-
complish this, we now realize that our decision in
that case was imprecise and, therefore, susceptible
to misinterpretation concerning how we reached
the conclusion that the maintenance employees
there warranted their own bargaining unit, thus
justifying that court's criticisms. For these reasons
we shall attempt in this case to outline the proce-
6 Memorial Hospital ofRoxborough v. N.LR.B., 545 F.2d 351 (3d Cir.
1976).
? St Vincent's Hospital v. N.LR.B., 567 F.2d 588 (3d Cir. 1977).
8 The Ninth Circuit apparently agrees with this interpretation of the
amendments. See N.LR.B. v. St. Francis Hospital of Lynwood, 601 F.2d
404 (9th Cir. 1979); N.LR.B. v. HMO Internaional/California Medical
Group Health Plan, 678 F.2d 806 (9th Cir. 1982).
dure we follow in determining the appropriateness
of maintenance employee bargaining units in the
health care field. In describing this process it is im-
possible to ignore other health care employee bar-
gaining units, for the analytical scheme in unit de-
terminations necessarily encompasses all health
care employees. It is important to begin this expla-
nation with a brief review of the legislative history
of the amendments which lies at the heart of the
controversy surrounding the appropriateness of
various health care bargaining units.
The issue of whether or not Congress intended
to permit maintenance employees to be represented
in their own unit arises from a single reference in
the committee reports accompanying the legislation
and a few statements made by sponsors of the
amendments. Both the Senate and the House com-
mittee reports contain the following statement:
Due consideration should be given by the
Board to preventing proliferation of bargaining
units in the health care industry. In this con-
nection, the Committee notes with approval
the recent Board decisions in Four Seasons
Nursing Center, 208 NLRB [403] (1974), and
Woodland Park Hospital, 205 NLRB [888]
(1973), as well as the trend toward broader
units enunciated in Extendicare of West Virgin-
ia, 203 NLRB [1232] (1973). 1
X By our reference to Extendicare, we do not necessarily ap-
prove all of the holdings of that decision."
In each of the cases cited "with approval" the
Board had refused to certify petitioned-for bargain-
ing units on the basis that those units failed to ex-
hibit a community of interest, separate and apart
from all other employee groups, sufficient to war-
rant their own unit. 1 0 The principle for which
these cases stand is that fragmented bargaining
units should be avoided. Congress' citing them re-
flects its concern that the greater the number of
units, the greater the possibility that the operation
of the facility could be interrupted. The threat that
some small unit of striking hospital employees
could effectively shut down the facility's ability to
meet the needs of its patients was seen as the po-
tential consequence of unit multiplicity.
Senator Taft was particularly concerned about
this possibility, prompting him to introduce S. 2292
9 S. Rept. 93-766, 93d Cong., 2d sess. 5 (1974), "Legislative History of
the Coverage of Nonprofit Hospitals Under the National Labor Relations
Act, 1974" at 12; H. Rept. 93-1501, 93d Cong., 2d sess. 6-7 (1974), at
274-275. Hereafter this shall be referred to as Legislative History.
o1 The only case dealing specifically with maintenance employees is
Four Seasons Nursing Center of Joliet, 208 NLRB 403 (1974). In that case
the entire maintenance staff consisted of two unskilled employees who
performed routine repair work and who shared common tasks and super-
vision with the housekeeping employees.
1026
ST. FRANCIS HOSPITAL
which would have amended Section 9(b) of the
Act" by limiting the number of health care bar-
gaining units to four, as follows:
[T]he Board shall not decide that any unit in a
health care institution is appropriate for the
purposes of collective bargaining which (i) in-
cludes professional employees unless all of the
professional employees employed by such in-
stitution are included therein; or (ii) includes
technical employees (as defined from time to
time by the Board) unless all of the technical
employees employed by such institution are in-
cluded therein; (iii) includes clerical employees
unless all of the clerical employees employed
by such institution are included therein; or (iv)
includes service and maintenance employees-
which shall be defined to include all employ-
ees except (A) professional, technical, and
clerical employees and (B) any individual em-
ployed as a guard . . . unless all of the service
and maintenance employees employed by such
institution are included therein. 12
However, when this proposal was not approved by
the committee, Senator Taft endorsed the commit-
tee report language, quoted above, and stated that
the Board should be permitted flexibility, yet exer-
cise caution, in unit determinations so as to avoid
disruptions resulting from jurisdictional disputes
and work stoppages.
Senator Williams expressed faith in the Board's
judgment in establishing appropriate collective-bar-
gaining units, particularly in newly covered indus-
tries. He noted that, while the Board generally
avoids unnecessary proliferation of units, some-
times circumstances, e.g., area practice, disparity of
employee interests, etc., require that there be multi-
ple bargaining units of employees of a single em-
ployer. He added, "While the committee clearly in-
tends that the Board give due consideration to its
admonition to avoid an undue proliferation of units
in the health care industry, it did not within this
framework intend to preclude the Board acting in
the public interest from exercising its specialized
experience and expert knowledge in determining
appropriate bargaining units."13
Congressman Thompson agreed with this view,
pointing out that the committee was concerned
about the undue proliferation of health care em-
ployee units. He stated that the reference to the
I I Sec. 9(b) of the Act reads in pertinent part: "The Board shall decide
in each case whether, in order to assure to employees the fullest freedom
in exercising the rights guaranteed by this Act, the unit appropriate for
the purposes of collective bargaining shall be the employer unit, craft
unit, plant unit, or subdivision thereof....
12 Leg. Hist., supm at 108-109.
Is 120 Cong. Rec. s. 12104 (1974). Leg. Hist., supra at 363.
three Board decisions in the committee report was
intended to reflect the statutory mandates, not to
foreclose the Board's discretion in determining tra-
ditional craft and departmental units in the health
care field. 4
Nowhere in the language of the amendments, in
the accompanying committee and conference re-
ports, or in the debates within the Senate or House,
are the words "maintenance units" found. The only
arguable support for the position that maintenance
units were intended to be barred throughout the
health care industry is the favorable reference to
Four Seasons, supra, in the committee reports.
However, as indicated above, that case's extreme
factual setting makes it unlikely that this bare refer-
ence, without more, was intended as an absolute
proscription against health care maintenance units
of any kind. Had it been Congress' intent to pro-
scribe health care maintenance units, it could
simply have incorporated into the amendments a
specific provision to that effect or stated this pur-
pose outright within the Legislative History. This
was not done. Moreover, Senator Taft's bill, which
would have, inter alia, accomplished this result,
was rejected in part because the unit provisions
were considered too inflexible.
The Legislative History reveals that Congress'
purpose in enacting the health care amendments
was to extend to health care employees the organi-
zational rights and protections afforded by the Act.
The changes in the Act needed to accomplish this
result were minimal and the restrictions placed on
the Board's processes, at least with regard to its
unit determination functions, were limited to a cau-
tionary instruction in the Legislative History that
undue proliferation is to be avoided.
A review of some unit determination cases re-
veals how the Board has attempted to follow both
the letter of the law as well as its intent. In Madei-
ra Nursing Center,'5 decided 18 months prior to
passage of the amendments, the Board concluded
that licensed practical nurses (LPNs) were entitled
to be represented separately at proprietary health
care institutions. This decision was based on expert
testimony which demonstrated a prevailing nation-
wide pattern of separate representation for
LPNs.' 6 However, in its first post-amendment de-
cision involving the question of separate represen-
tation for LPNs, St. Catherine's Hospital,'7 the
Board effectively overruled Madeira and held that
henceforth the smallest appropriate unit which
14 120 Cong. Rec. E4899 (daily ed., July 2, 1974).
at Madeira Nursing Center. Inc, 203 NLRB 323 (1973).
'1 Id. at 324-325.
17 St Catherine's Hospital of Daminican Sisters of Kenosha Wisonsin,
Inc, 217 NLRB 787 (1975).
1027
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could encompass LPNs would be a unit of all tech-
nical employees.1 s
In Kaiser Foundation Hospitals,19 the first post-
amendment case dealing with separate representa-
tion for pharmacists, the Regional Director con-
cluded that the pharmacists constituted a separate
appropriate unit because they were "physically iso-
lated" from and had "virtually no contact or inter-
change" with other employees, had separate super-
vision, and could not substitute for other employ-
ees given their "very specific training." While not
disputing these findings, the Board nevertheless de-
termined that a separate unit of pharmacists was in-
consistent with the Legislative History's concern
with unit fragmentation.
In fact, among the many health care professional
employees, only registered nurses (RNs)2 0 and
physicians2 1 have been regularly granted separate
units, apart from other health care professional em-
ployees. However, it should be emphasized that
simply because we have found that certain unique
attributes generally distinguish RNs and physicians
sufficiently from other health care professionals to
warrant separate representation, this does not mean
that they will invariably be entitled to their own
units.2 2 The per se approach was specifically re-
jected in Newton-Wellesley Hospital, supra. In that
case the Board disavowed its earlier presumption
that RN-only units were appropriate, finding such
an approach to be at odds with its Section 9(b) re-
sponsibility to "decide in each case" whether the
requested unit is appropriate. In Newton-Wellesley
we found that the requested unit of RNs was ap-
propriate, noting particularly their administrative
and functional separation from other employees,
their continuous and close working contact with
1a The nature of the functions performed in modern health care facili-
ties has led to the inclusion of a wide variety of specially trained employ-
ees within the technical employee category. See, e.g., Clarion Osteopathic
Community Hospital, 219 NLRB 248 (1975); Nathan and Miriam Barnert
Memorial Hospital Association d/b/a Barnert Memorial Hospital Center,
217 NLRB 775 (1975); Pontiac Osteopathic Hospital, 227 NLRB 1706
(1977); Children's Hospital of Pittsburgh, 222 NLRB 588 (1976). While
many individual differences exist among the diverse specialities found in
these cases, the Board has focused on broader, unifying characteristics,
such as the necessity of training and certification rather than the type of
training, in grouping these employees within a single bargaining unit.
'1 219 NLRB 325 (1975).
20 Newton- Wellesley Hospital, 250 NLRB 409 (1980).
2 1 Ohio Valley Hospital Association, 230 NLRB 604 (1977).
2" A correlative issue of preventing disunity within subcategories of
professional health care employees led to a Board majority's decision to
deny a separate unit for nursing school instructors, exclusive of hospital-
based RNs, in Jersey Shore Medical Center-Fitkin Hospital, 225 NLRB
1191 (1976). In that case differences in supervision, duties, location, and
hours-factors which likely would have been adequate to find a separate
community of interest in a non-health care setting-were subordinated to
the overriding interest of avoiding unit proliferation.
Similarly, the separate community-of-interest factors exhibited by clini-
cal psychiatrists were subordinated in favor of professional cohesion in
New York University Medical Center, a Division of New York University,
217 NLRB 522 (1975).
one another, and the unique educational and train-
ing requisites of the profession.2 3 Since enunciating
this case-by-case approach to RN units in Newton-
Wellesley, the Board has required that the record
demonstrate the appropriateness of the requested
unit, rather than presume that this quality exists by
virtue of the RN designation.2 4
On the same day that the Kaiser decision issued,
the Board declined, in Levine Hospital of Hayward,
Inc.,25 to give a group of residual employees-a
classic appropriate unit in non-health care cases-
their own bargaining unit. The possibility that
these employees could be included within a unit of
already-represented service and maintenance em-
ployees, should an interested party properly so pe-
tition, was viewed as an adequate safeguard for
these employees' representational rights when
weighed against the unit considerations raised in
the Legislative History.
The most explicit evidence that the Board does
not adhere to traditional unit criteria in health care
unit determinations is our decision in Duke Univer-
sity.2 6 There we stated that the employees covered
by the petition-switchboard operators who are
separately housed, had no day-to-day contact with
other employees, worked different hours and under
separate supervision-shared a distinct community
of interest, but that such a unit was "Congression-
ally foreclosed."2 7
Business office clerical employees aregenerally
recognized as possessing such distinct job charac-
teristics as to warrant representation in their own
unit both inside and outside the health care field.
See Mercy Hospitals of Sacramento, Inc., 217 NLRB
765 (1975); Sisters of St. Joseph of Peace, 217 NLRB
797 (1975). So too have we acknowledged that em-
ployees included under the "service and mainte-
nance" rubric usually are appropriately separated
from other health care employees, either in an
overall category2 8 or within a separate mainte-
as As these criteria indicate, and as the decision in Newton-Wellesley
makes clear, the unit determination analysis necessarily includes aspects
of both intraunit similarities and interunit differences; i.e., the "communi-
ty of interest" factors shared by those within the proposed unit as well as
the "disparity of interests" which distinguish these employees from those
outside the unit description.
24 See Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, 253
NLRB 1003 (1981); Milwaukee Children's Hospital Association, 255 NLRB
1009 (1981). Accordingly, we disavow the footnote reference in French
Hospital Medical Center, 254 NLRB 711, fn. 7 (1981), that Newton-Welles-
ley held such units were presumptively appropriate.
"5 219 NLRB 327 (1975).
26 217 NLRB 799 (1975).
27 As we indicated in Newton-Wellesley Hospital, supra, the examples of
cases in which the Board, since passage of the amendments, has departed
from the community-of-interest analysis regularly followed in non-health
care cases extend far beyond those cited here. See 250 NLRB at fn. 16.
2" There are no reported Board decisions in which an election limited
to a health care institution's service employees was directed. However,
the appropriateness of a separate service unit is inferential in the event
that a maintenance unit is recognized or certified.
1028
ST. FRANCIS HOSPITAL
nance unit, depending upon the circumstances pre-
sented in a particular case.
These cases demonstrate that the Board has re-
sponded to the Congressional concern for special
attention to the number of bargaining units at a
health care institution. It has refined and limited
the traditional unit principles applicable in other
employment settings. In cases arising outside the
health care industry, the Board applies only a com-
munity-of-interest test, in which we examine the
petitioned-for unit for shared job characteristics
and common workplace concerns to determine
whether that group of employees comprises an ap-
propriate unit for bargaining. However, in the
health care industry, to guard against the possibil-
ity that each of the many subspecialties at a
modern health care facility might seek a separate
bargaining unit, we have added a preliminary step
to our unit determination process. We have identi-
fied certain groups of employees commonly found
in a health care institution: physicians, registered
nurses, other professional employees, technical em-
ployees, business office clerical employees, service
and maintenance employees, and skilled mainte-
nance employees. Often these groups of employees
constitute the entire employee complement, and,
almost invariably, all employees will fall into one
of these enumerated categories. Based on our expe-
rience in examining the employee complement at
health care facilities, we have determined that
these seven named classifications represent the
groupings of employees that may constitute appro-
priate units for bargaining. Only after determining
that the unit sought fits one of these classifications
do we then apply our traditional unit principles to
determine whether the specific employees involved
do, in fact, display the requisite community of in-
terest to warrant separate representation. Under
this two-tiered approach, if a petitioner seeks to
represent a unit comprised of one of these seven
potentially appropriate units, we will analyze the
proposed unit to determine whether it displays the
requisite separate identity for individual representa-
tion. If, however, a petitioner seeks to represent a
unit of employees smaller than one of these seven
identified groups, for example, a unit consisting
only of physical therapists or telephone operators,
we will dismiss that petition before reaching the
second stage of analysis, unless we are presented
with extraordinary and compelling facts justifying
allowance of a smaller unit. By restricting the
number of potentially appropriate units in this
way-despite the fact that many more units could
be appropriate under our traditional community-of-
interest analysis alone-we have met our statutory
responsibility to ensure against unwarranted frag-
mentation of bargaining units in the health care in-
dustry.
Our dissenting colleagues have seized upon the
term "community of interest" as evidence that we
have ignored congressional intent and disobeyed
judicial directives2 9 that we modify our unit deter-
mination approach to meet the special needs of the
health care field. They contend that use of a dis-
parity-of-interest test instead will comply with
Congress' directives and, therein, respond to the
courts' concerns regarding unit proliferation. We
believe their position is misdirected in several im-
portant respects. First, Congress did not instruct
the Board to abandon its community-of-interest test
in health care cases. Instead, as described at length
above, the Legislative History relating to this issue
expressly reaffirms Congress' faith in the Board's
long-established processes and demonstrated exper-
tise in performing its unit-determination function.
In addition, Congress left intact Section 9(b) of the
Act, which imposes upon the Board the responsi-
bility to "decide in each case, whether in order to
assure to employees the fullest freedom in exercis-
ing the rights guaranteed by this Act, the unit ap-
propriate for collective bargaining shall be the em-
ployee unit, craft unit, plant unit or subdivision
thereof." Consistent with this 9(b) mandate, the
Board's practice of over 40 years (at the time of
the adoption of the health care amendments) had
been to begin its review of appropriate bargaining
units by examining the appropriateness of the peti-
tioned-for unit. Had Congress intended to alter
radically this procedure, it would have stated this
a9 In support of its position, the dissents cite circuit court criticism of
the Board's health care unit approach. Notably, the courts have been
most critical of decisions dealing with maintenance units and RN units.
See discussion of Allegheny General, supra. The Ninth Circuit, in St. Fran-
cis Hospital of Lynwood supra, attached the Board's per se approach to
RN unit appropriateness, a policy which we subsequently disavowed in
Newton-Wellesley. supra. See also the Tenth Circuit Court of Appeals
opinions in Presbyterian/Sl Luke's Medical Center v. N. LR.R., 653 F.2d
450 (1981), Beth Israel Hospital and Geriatric Center v. N.LR.B., 677 F. 2d
1343 (1981), and SL Anthony Hospital Systems v. N.LR.B., 655 F.2d 1028
(1981). The latter two cases were reaffirmed en banc 688 F.2d 697 (10th
Cir. 1982). September 13, 1982. Additionally, in St Francis, the court
charged that the Board's adherence to a "community of interests" test
rather than a "disparity of interests" test violated the congressionally ad-
vised approach to health care cases. This criticism is unwarranted, given
our evaluation of the disparities element within the community-of- inter-
est formula. See fn. 22, supra, and further discussion of this issue, infra. In
HMO International supra, the Ninth Circuit went even further; it not
only rejected the Board's rationale for finding an RN-only unit appropri-
ate, but also-without any support from the statute or the Legislative
History-disrupted an existing technical employee unit. With but a pass-
ing reference to Sonotone (Sonotone Corporation), 90 NLRB 1236 (1950),
and Sec. 9(bXI), the court stated that LPNs included within an existing
technical employee unit more closely resemble the RNs in issue and that
these two groups should properly be represented within the same unit.
We believe that while the HMO decision represents the most extreme ex-
ample of misinterpretation of the Legislative History to the health care
amendments, it is the inevitable result of placing more importance upon a
congressional admonition than upon sound principles of statutory con-
struction.
1029
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intent; Congress having remained silent on this
issue, we rely on the doctrine of legislative reenact-
ment to find that Congress intended no such drastic
change.3 0 Congress directed only an adjustment in
the manner in which we apply the unit concept to
the health care industry. We believe the approach
outlined above-adding a preliminary "screening"
step to our unit determination process-accords
with Congress' intent.
Further, the approach of the dissents-to apply a
disparity-of-interest test in such a way as to derive
the most appropriate unit-is contrary to the Act
and long-established Board law and is totally lack-
ing in support from the Legislative History to the
amendments. This Board has never held to so
narrow and precise a view of bargaining unit com-
position. As stated in Morand Brothers Beverage
Company, et al.:31
There is nothing in the statute which requires
that the unit for bargaining be the only appro-
priate unit, or the ultimate unit, or the most ap-
propriate unit; the Act requires only that the
unit be "appropriate."' 3 It must be appropriate
to ensure to employees, in each case, "the ful-
lest freedom in exercising the rights guaran-
teed by this Act."' 4
Is Appropriate is a word with a well-defined meaning. Web-
ster's International Dictionary defines it as: "Suitable for the pur-
pose and circumstances; befitting the place or occasion." It carries
with it no overtones of the exclusive or the ultimate or the superla-
tive. To convey such thoughts, the words "only" or "ultimate" or
"most" must be conjoined with the word "appropriate." The stat-
ute does not conjoin them. See also Garden State Hoisery Co., 74
NLRB 318, 324.
" Section 9(b).
As this passage affirms, our responsibility is to de-
termine unit composition that is suited for the col-
lective-bargaining purposes in which the particular
employees are situated. It need be neither the
broadest possible group nor the narrowest, but it
must ensure effective representation for the em-
ployees included within the unit.3 2
The Board has been subjected to substantial criti-
cism from both the courts of appeals and various
s3 As long ago as 1908, the Supreme court stated that "the reenact-
ment by Congress, without change, of a statute, which had previously re-
ceived long continued executive construction, is an adoption by Congress
of such construction." United States v. Cerecedo Hermanos Compania, 209
U.S. 337, 339 (1908); see also Commissioner of Internal Revenue v. Flow-
ers, 326 U.S. 465, 469 (1946).
s" Morand Brothers Beverage Company, et al, 91 NLRB 409, 418
(1950), enfd. 190 F.2d 576 (7th Cir. 1951).
s3 The Chairman's two-unit approach, grouping all professional health
care employees in one unit and all nonprofessional employees in another,
constitutes an abdication of our statutory responsibility and sacrifices the
employees' right to be represented within a unit which may more effec-
tively reflect their particular interests. The suggestion that all employees
whose sole shared trait is their professional or nonprofessional status can
bargain effectively within a single unit sacrifices workplace reality for
employer convenience.
commentators concerning our previous decisions
relating to the determination of appropriate units in
the health care industry.3 3 An analysis of the criti-
cisms of the Board indicates that complaints con-
cerning the Board's framework have focused on
two units which the Board has found to be poten-
tially appropriate and those who have criticized the
Board would not allow. Thus the issue of substan-
tial litigation and debate, which has frustrated ef-
fective and efficient application of the Act to the
health care industry, has been the Board's allow-
ance of a separate unit of registered nurses, apart
from other professionals, and its allowance of a
separate unit of skilled maintenance personnel, sep-
arate from a general service and maintenance unit.
It has generally been conceded that the other units
previously authorized by the Board would be ap-
propriate under any proposed formulation.
The courts of appeals that have criticized the
Board have adopted a completely new test for de-
termining appropriate units in the health care in-
dustry-the so-called disparity-of-interest test.3 4
For the reasons discussed above, we find this test
not to be compelled by the legislative history of
the health care amendments of the Act, and find
that it would deprive the Board of the flexibility to
determine appropriate units which Congress intend-
ed the Board to exercise in this area.
Further, we find the logic of the disparity-of-in-
terest test to be at odds with the Board's historic
role in determining appropriate units. Under that
test, the Courts of Appeals for the Ninth and Tenth
Circuits have suggested that the Board is under an
obligation to seek out the largest possible appropri-
ate unit, and to find it, and only it, to be the appro-
priate unit.33 The logical extention of this principle
is demonstrated by Chairman Van de Water's dis-
sent here, and the Ninth Circuit's recent decision in
HMO International v. N.L.R.B. Both the Chairman
here, and the court in HMO would effectively limit
health care facilities to two units for collective bar-
gaining, one of professionals and one of nonprofes-
sionals. Such a unit approach is entirely consistent
with the disparity-of-interest analysis. But it is en-
tirely inconsistent with the Board's historic ap-
proach to unit determinations. Had Congress in-
tended to work such a radical departure in Board
unit determinations, we hardly think it likely that it
would have relegated its instructions to a few am-
ss Allegheny General Hospital v. N.LR.B, 608 F.2d 965 (3d Cir. 1979);
Presbyterian/St Luke's Medical Center v. N.L R.B., supra N.LR.B. v.
HMO International/California Medical Group Health Plani supra. See also
Husband, Determining Appropriate Bargaining Units in Health Care Institu-
tions--The Gap Widens, 32 Labor Law Journal 780 (1981).
'4 Presbyterian/St Luke's Medical Center v. N. LR.B., supra HMO In-
ternational, et al v. N. LR.B.. supra
3' Id.
1030
ST. FRANCIS HOSPITAL
biguous statements in the legislative history.
Rather, it would have proceeded along the lines
originally suggested by Senator Taft, that the spe-
cific number of appropriate units be specified in the
statute. This Congress did not do.
The formulation proposed by our dissenting col-
leagues is even more restrictive than those which
were specifically rejected during the amendment
process as too inflexible. The American Hospital
Association3 6 (AHA) and Senator Taft3 7 each
sought unsuccessfully to limit the number of health
care bargaining units to four; both were considered
overly stringent. 38 Under the majority's health
care unit system there are only three more poten-
tially appropriate units than the four proposed by
the AHA and Senator Taft.3 9
The final misapprehension evidenced by the dis-
senters is their characterization of the disparity-of-
interest test as an analytical system unrelated to the
community-of-interest test. The community-of-in-
terest test, by its very nature, consists of both an
examination of the similarities among the employ-
ees in a requested unit and, implicitly, an evalua-
tion of the characteristics which differentiate the
proposed unit members from their fellow employ-
ees. The disparities which set apart one group of
employees from another compose one of the fac-
tors which is necessarily considered within the
overall unit appropriateness test. See, for example,
Shriners Hospitals for Crippled Children,4 0 where all
members of a divided Board focused on "notable
disparity of interests between employees in differ-
ent job classifications," and found the requested
unit inappropriate. While this "disparity of inter-
ests" language has not consistently been reiterated
in subsequent Board decisions, the equivalent re-
quirement that the appropriate unit have a "sepa-
rate and distinct" or simply "distinct" community
of interest has remained the linchpin. See Shriners
s' See Coverage of Nonprofit Hospitals Under National Labor Rela-
tions Act, 1973. Hearings on S. 794, S. 2292 before the Subcommittee on
Labor of the Committee on Labor and Public Welfare, 93d Cong., Ist
seas. at 147148.
'7 S. 2292. See Leg. Hist. at 457-458.
a8 The notion that in rejecting these proposals Congress may have pre-
ferred an even smaller maximum number of units is unsound. As our ex-
amination of the Legislative History above shows, the rejection was for
exactly the opposite reasons. In addition, the Taft proposal, quoted earli-
er in this decision, did not foreclose the possibility of grouping together
two or more of the classifications he outlined. All that would have been
required is that, if, for example, a unit of technical employees were found
appropriate, then all technical employees would have been included in
that unit. It neither required that a technical unit be found appropriate
nor precluded the inclusion of technical employees within another of the
employee units.
3g Our approach, in practice, actually exceeds the rejected four-unit
limit by only two; the seventh potentially appropriate unit, one of medi-
cal staff doctors, appears almost nonexistent. In the 8 years since the
amendments' enactment the Board has considered only two cases dealing
with such a unit.
40 217 NLRB 806 (1975).
Hospitals, supra; Newton-Wellesley, supra, and cases
cited therein; Addison-Gilbert Hospital, 253 NLRB
1010 (1981); and The Long Island College Hospital,
256 NLRB 202 (1981). A careful reading of our
unit determination cases reveals that we have ap-
plied the disparity-of-interest test as one aspect of
our analysis. While it may not always be identified
as such, it is an inherent element in the broader,
traditional, and congressionally sanctioned ap-
proach to our unit determination function.
In reaching this position we believe we have
struck the proper balance of carrying out our re-
sponsibilities under the statute, heeding the legisla-
tive warnings, and accommodating the special
needs and concerns of a vital industry. We believe
it is important to emphasize at this point that the
principal purpose of the health care amendments
was to introduce the orderly processes, protections,
and restraints of the Act to the nonprofit health
care sector. The special concern about the dangers
of disruptions within this industry do not refute
this premise. See Leg. Hist. at 375 (remarks of Sen-
ator Taft):
. . . the only thing that prevents strikes is the
establishment and maintenance of a good col-
lective bargaining climate. I believe the best
way to assure that kind of climate is by cover-
ing employees in the private health care field
under the National Labor Relations Act in es-
sentially the same manner that employees in
other industries are covered.
To assure that our health care unit approach is
clear and is not misunderstood, we will recapitulate
the procedure we follow. We begin with a maxi-
mum of seven potentially appropriate units, derived
through our 8 years' experience with the industry:
physicians, registered nurses, other professional em-
ployees, technical employees, business office cleri-
cal employees, service and maintenance employees,
and maintenance employees. These units are nei-
ther presumptively appropriate nor will they in-
variably be granted. They are, rather, commonly
found employee groups which may warrant their
own bargaining units if it is adequately demonstrat-
ed that they actually possess a distinct community
of interest, separate and apart from other hospital
employees. Accordingly, if a petitioner seeks to
represent a unit comprised of one such potentially
appropriate group, we then apply the various com-
munity-of-interest criteria to the particular employ-
ees involved to determine whether they in fact
comprise an appropriate bargaining unit. If suffi-
cient intragroup identity is established and there
are sufficient distinctions separating these employ-
ees from others at the facility, we will find the pe-
1031
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
titioned-for unit appropriate. If they fail to demon-
strate such singular identity, we will not find the
unit appropriate. Should a petitioner seek to repre-
sent a unit of employees not among the seven po-
tentially appropriate units named above, we will,
absent a showing of extraordinary circumstances,
dismiss the petition.41 While this approach may oc-
casionally produce a case such as Michael Reese
Hospital and Medical Center,4 2 where chauffeur-
drivers were granted their own bargaining unit, we
believe that such "additional unit" cases will be
rare, and, in fact, greatly outnumbered by cases
where separate representation for one of the seven
potentially appropriate units will be found unwar-
ranted. See Mount Airy Psychiatric Center, supra,
where we denied a request for a separate RN unit
because of an insufficient showing of disparity of
interest from other professional employees; Kaiser
Foundation Health Plan of Colorado and Permanente
Services of Colorado, Inc.,4 3 where we dismissed a
petition for a unit of non-RN professionals because
certain RNs should have been included; and Appa-
lachian Regional Hospitals, Inc.,44 where we includ-
ed business office clericals in a unit with all serv-
ice, maintenance, and technical employees.
This approach offers neither facile, predeter-
mined answers nor unyielding rigidity. It does re-
quire a thorough, case-by-case analysis of the facts
and circumstances presented. We believe it pro-
vides a structure for analyzing unit appropriateness
which accommodates both the representational
rights of health care employees and the congres-
sional concern about the dangers of disruption of
hospital operation inherent in unit multiplicity.
The potentiality of appropriateness and the care-
ful scrutiny applied in reaching an ultimate deter-
mination are particularly notable in maintenance
unit cases. Applying our test to these employees re-
quires consideration of a number of factors which,
while considered in nonmaintenance unit cases, do
not rise to an equal level of significance. Among
such factors are the job tasks involved and the
level of skills required to perform them, the loca-
tion of the maintenance department, the amount of
work integration with other employees, and the
level of personnel interchange with other employ-
41 Our obligation, under Sec. 9(b) of the Act, precludes us from dis-
missing the petition without considering evidence of special or unique
circumstances that may justify finding appropriate a unit consisting of
employees other than the possible six or seven named above. However,
while there may thus be an occasional exception, we believe that such
extraordinary cases will be few and, therefore, pose no threat of undue
proliferation of bargaining units. Indeed, we will be exercising precisely
this due consideration to avoid unit proliferation in determining whether
the circumstances of such a case are so unusual and extraordinary as to
justify a separate unit.
4" 242 NLRB 322 (1979).
4' 230 NLRB 438 (1977).
44 233 NLRB 542 (1977).
ees. To illustrate how this analysis works, we need
only refer to some Board decisions. For example,
we have determined that in order to find appropri-
ate a separate health care maintenance unit there
should be only minimal work integration and insig-
nificant job-related contact between the mainte-
nance and service employees. See, e.g., St. Vincent
Hospital and Medical Center of Toledo, Ohio, 241
NLRB 492 (1979); Southern Maryland Hospital
Center, 241 NLRB 494 (1979). In the non-health
care sector this factor is less important and separate
maintenance units have been found appropriate de-
spite substantial interaction with other employ-
ees.45 In addition, we have generally relied on a
higher level of skills as indicative of a disparity of
interests between the maintenance and the service
employees. See, e.g., Faulkner Hospital, 242 NLRB
47 (1979); Southern Baptist Hospitals, Inc., 242
NLRB 1329 (1979). However, because of the broad
range of functions usually performed by mainte-
nance department employees, it has not been found
necessary that every employee, demonstrate ad-
vanced skills in order to include them within the
unit.4 6 We also look for a variance between the
service employees' wages and the maintenance em-
ployees' wages, which reflects to us the employer's
acknowledgment of the different job duties and re-
sponsibilities of these groups. See Sutter Communi-
ty Hospitals of Sacramento, Inc., 227 NLRB 181
(1976).
The nature of this inquiry and balancing of fac-
tors is such that there will inevitably be disagree-
ments among the analysts as to whether a particu-
lar maintenance group may be said to possess an in-
dependent identity or whether its identity has been
subsumed within a larger service and maintenance
process. That Board Members may disagree as to
whether a requested maintenance unit meets this
standard of appropriateness does not, however,
alter the fact that the Board is charged with the re-
sponsibility of deciding unit appropriateness. As we
indicated earlier in this decision, judicial criticism
of the Board's consistent position on maintenance
units in the health care industry may be a function
of our failure to describe the analytical procedure
we follow in all health care cases. As should be
clear from this decision, the Board has not adopted
the unit approach used in non-health care indus-
tries, but rather has selected a more limited catego-
ry of units within which to apply community-of-in-
terest criteria. We regard all other units as incon-
sistent with the Legislative History, unless extraor-
dinary and compelling circumstances are shown to
46 See Verona Dyestuff Division, Mobay Chemical Corporation, 225
NLRB 1159 (1976); Crown Simpson Pulp Company, 163 NLRB 796 (1967).
46 See Divine Providence Hospital of Pittsburgh, 248 NLRB 521 (1980).
1032
ST. FRANCIS HOSPITAL
exist. Some may view this approach as falling short
of Congress' wish; others may view it as more rig-
orous than Congress required. We are convinced
that it strikes the proper balance.
Turning to the particular circumstances of this
case, the 39 employees in the 4 maintenance de-
partments perform duties requiring skills and expe-
rience not required of the approximately 400 serv-
ice employees. Some of these employees possess
greater skills than others, in accord with the requi-
sites of their individual job duties. Although not
currently a prerequisite for employment, the hospi-
tal prefers to fill maintenance positions with per-
sons who have achieved either a journeyman grade
level or who have substantial relevant experience
in their field. The most highly skilled among the
maintenance employees are the boiler operators,
two of whom are city-licensed steam operators
whose job description requires 4 years' experience
for applicants; the painter/vinyl hanger, who must
have a minimum of 5 years' experience for the po-
sition; and the carpenters, cabinetmakers, and util-
ity operators who each must possess 4 years' expe-
rience in their respective trades to qualify for the
job. Two of three years' experience is required for
the positions of painter, plumber, electrician, pneu-
matic tube operator, electronics technician, com-
munications technician, and utility mechanic. Re-
frigeration mechanics, HVAC mechanics, and
HVAC helper/trainaes must have at least a year's
experience for employment with the hospital. Less
experience is needed for the position of general
maintenance mechanic and no prior experience is
required for the X-ray processor mechanic, mainte-
nance helpers, groundskeeper, or refuse and linen
collectors.
In addition to the experience requirements, boiler
operators usually require a full year of on-the-job
training in order to perform adequately their duties
which include operating, maintaining, and repairing
steam-generating boilers and air-conditioning
chillers, chemically testing and adjusting the feed
water needed in these machines, and checking the
status of the air-handling units by use of a comput-
er system. Up-to-date knowledge of applicable
codes and ordinances is mandatory.
The utility operators also need an additional year
of on-the-job training, inasmuch as they work
alongside the boiler operators in performing the
same kinds of critical functions in properly regulat-
ing the environment within the hospital's physical
plant.
The plumber's job requires completion of an ori-
entation program which lasts from 2-4 weeks upon
entry to employment. Installation and repair of
every variety of plumbing fixture, piping systems,
including biomedical piping, and regulating and
terminal devices, such as oxygen, vacuum, nitro-
gen, etc., are the major responsibilities of the
person in this position.
On-the-job training for the electrician generally
lasts from I to 3 months. Weekly operation of the
electrical standby power system, testing of all high-
voltage equipment, inspecting all electrical compo-
nents, and performing preventive maintenance on
all such devices requires great familiarity with the
entire system.
From 3 to 6 months is needed on the job to fa-
miliarize the pneumatic tube operators with the
hospital's pneumatic system and to ensure that it is
functioning properly. Unstopping jams in the
system whenever they occur as well as trouble-
shooting through reading schematic diagrams and
blueprints are among their primary responsibilities.
At least 6 months' on-the-job training is required
for refrigeration mechanics to learn proper installa-
tion and repair techniques for all refrigerated de-
vices, including those units used in blood and drug
storage.
HVAC mechanics require only 2 to 4 weeks of
on-the-job training, while the HVAC trainees need
6 months to I year of such additional training. A
wide variety of skills is required, including experi-
ence with the electrical system which supplies the
power for the heating and air-conditioning equip-
ment, as well as a thorough understanding of the
hospital's system.
The general maintenance mechanic requires from
2 to 4 weeks of job training in addition to the
above-mentioned experience requirement in order
to assure that general and routine mechanical main-
tenance assignments are completed expeditiously,
with the least inconvenience to patients, visitors,
and other employees.
In order to acquire proficiency in maintaining
and cleaning the X-ray processing and develop-
ment equipment, the mechanic requires between 1
and 3 months of actual job training. The mainte-
nance helper needs from 2 to 4 weeks' training on
the job, as does the groundskeeper, in order to
become familiar with their responsibilities both
inside and outside the hospital facility. Only I to 2
weeks of on-the-job training is needed for refuse
and linen collectors to acquaint themselves with
the automatic, key-operated chute system as well as
the manual means of properly handling their sani-
tary maintenance functions.
In addition to such training the hospital offers
courses specifically designed to enhance the main-
tenance employees' job performance as part of a
continuing process of keeping them current with
new techniques in an evolving medical facility.
1033
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no evidence that any employees in the
maintenance categories perform service department
work and the service employees perform no main-
tenance duties. There is complete separation of su-
pervision and direction between these two groups
as well.
Because of the nature of their work, the boiler-
room employees are entirely segregated from all
other hospital personnel. However, the majority of
the functions performed by maintenance employees
necessitates their working throughout the entire fa-
cility, wherever their expertise is needed at the
time. Installing, repairing, and maintaining all the
equipment required in the effective functioning of
the hospital is dependent upon the presence of
maintenance employees in all parts of the facility.
Therefore, these employees are in frequent contact
with every category of health care personnel, but
they perform their duties independently. Such inci-
dental contact is not indicative of functional inte-
gration.
The hospital's Pay Plan A covers both service
and maintenance employees, but maintenance
workers are concentrated at the high end of this
scale, reflecting their greater skills and responsibil-
ities. Eleven of the maintenance positions-20 of
the 39 employees-are included in the highest pay
grade. Two other maintenance positions, including
three employees, are in the second highest pay
grade.
The maintenance employees in this case closely
resemble those in both Faulkner Hospital, supra,
and Southern Baptist Hospital, Inc., supra. They
report to separate locations at the beginning of
their work shifts, are administered separately from
the service department, are separately supervised,
and possess overall greater skills and experience
than are required for the service employees. They
share no duties with the service departments. They
are reponsible for a variety of maintenance-related
functions without being functionally integrated
with other hospital departments.
On balance, we believe the maintenance depart-
ment here constitutes an appropriate unit, including
employees classified under a gamut of job descrip-
tions who nonetheless share sufficient work charac-
teristics to unify their overall collective-bargaining
interests. In so doing, we are accommodating both
the Act's Section 9(b) direction to "ensure employ-
ees the fullest freedom in exercising the rights
guaranteed by this Act" and the congressional
committee report's cautionary instruction to pre-
vent proliferation of bargaining units.
DIRECTION
It is hereby directed that the Regional Director
for Region 26 open and count the impounded bal-
lots, and take further appropriate action as may be
required.
CHAIRMAN VAN DE WATER, dissenting:
The conclusion of my colleagues in the majority
that a unit of maintenance employees in this hospi-
tal constitutes an appropriate unit for bargaining
cannot withstand scrutiny because: it ignores and is
inconsistent with a specific congressional mandate
that the Board prevent the proliferation of bargain-
ing units in health care institutions; it ignores and is
inconsistent with the interpretation of that congres-
sional mandate by the courts of appeals; lastly, the
modified rationale used by the majority herein is
inconsistent with the Board's former position the
last time it addressed this issue. The time is long
overdue for this Board to formulate a plain and co-
herent approach to resolving unit issues in the
health care industry with basic reliance on congres-
sional intent as interpreted by the courts.
I.
When Congress broadened our jurisdiction in
1974 to include nonprofit hospitals,4 7 it added Sec-
tion 2(14) to the Act, which placed these hospitals
in a wider grouping of "health care institutions."
Such an institution was defined in Section 2(14) as
"any hospital, convalescent hospital, health mainte-
nance organization, health clinic, nursing home, ex-
tended care facility, or other institution devoted to
the care of sick, infirm, or aged person [sic]." Rec-
ognizing, however, "that the needs of patients in
health care institutions required special considera-
tion in the Act,"4 8 Congress enacted special provi-
sions in Section 8(d) and (g). Section 8(d), as
amended, requires earlier notice of contract termi-
nation or modification to the other party and to the
Federal Mediation and Conciliation Service
(FMCS) where collective-bargaining involves a
health care institution; requires a labor organization
to give 30 days' notice of a dispute to the FMCS,
where bargaining is for an initial contract; and re-
quires the parties to participate in mandatory medi-
ation by FMCS. Section 8(g) requires that a labor
organization give a health care institution and
FMCS 10 days' notice prior to striking or picketing
at the premises. However, as pointed out by former
Member Penello in his dissenting opinion in Alle-
gheny General Hospital,49 Congress had a further
4' Public Law 93-360, 88 Stat. 395.
48 S. Rept. 93-766, 93d Cong., 2d sess. 5 (1974), "Legislative History
of the Coverage of Nonprofit Hospitals Under the National Labor Rela-
tions Act, 1974" (hereinafter Leg. Hist.) at 10.
49 239 NLRB 872, 880 (1978), enforcement denied 608 F.2d 965 (1979).
1034
ST. FRANCIS HOSPITAL
concern which it did not choose to meet by for-
mally amending the Act:
The legislators desired . . . to limit the inci-
dence of strikes and work stoppages by in-
structing the Board to minimize the number of
bargaining units in this industry. Congress un-
derstood that the risk of disruptive work stop-
pages in a health care facility would be in-
creased the larger the number of bargaining
units, primarily because of the heightened pos-
sibility of jurisdictional disputes among com-
peting unions and the traditional reluctance of
many employees to cross picket lines erected
even by unions other than their own.
To ensure that the Board would restrict the
number of units in health care facilities, the follow-
ing now-famous passage was placed in the House
and Senate Committee Reports: 50
Due consideration should be given by the
Board to preventing proliferation of bargaining
units in the health care industry. In this con-
nection, the Committee notes with approval
the recent Board decisions in Four Seasons
Nursing Center, 208 NLRB [403] (1974), and
Woodland Park Hospital, 205 NLRB [888]
(1973), as well as the trend toward broader
units enunciated in Extendicare of West Virgin-
ia, 203 NLRB [1232] (1973).1
i By our reference to Extendicare, we do not necessarily ap-
prove all of the holdings of that decision.
According to Senator Taft, one of the cospon-
sors of the 1974 amendments, this "report language
was agreed upon to stress the necessity to the
Board to reduce and limit the number of bargain-
ing units in a health care institution," and he em-
phasized that he could not "stress enough, howev-
er, the importance of great caution being exercised
by the Board in reviewing unit cases in this area.
Unwarranted unit fragmentation leading to jurisdic-
tional disputes and work stoppages must be pre-
vented." " ' Senator Taft also commented, in rela-
tion to the footnote qualification of the reference to
Extendicare of West Virginia, supra, in the commit-
tee reports: 52
Part of the unit findings in that case, it can
be argued, was overly broad and not consist-
ent with minimization of the number of bar-
gaining units in health care institutions. Cer-
tainly, every effort should be made to prevent
a proliferation of bargaining units in the health
care field and this was one of the central issues
50 Leg. Hist., supra at 12 and 274-275.
" IId. at 114.
" Id. at 255.
leading to agreement on this legislation. In this
area there is a definite need for the Board to
examine the public interest in determining ap-
propriate bargaining units.
And Senator Williams, also a cosponsor of the leg-
islation, stated, inter alia, "sometimes circumstances
require that there be a number of bargaining units
among nonsupervisory employees, particularly
where there is such a history in the area or a nota-
ble disparity of interests between employees in dif-
ferent job classifications." 5 3
II.
What this legislative history unambiguously re-
veals to me is that Congress did not intend for the
Board to utilize its traditional community-of-inter-
est test to determine bargaining units in health care
facilities, but rather that it should minimize the
number of units in such institutions to promote the
policy of limiting the likelihood of work stoppages.
Notwithstanding the evident intention of Congress,
the Board, in Allegheny General Hospital, supra,
granted a separate unit of maintenance employees.
The Board surveyed the legislative history and
case law to that date, and concluded, "We think it
is also clear that Congress intended that we should
rely on our traditional community-of-interest crite-
ria in making unit determinations in the health care
industry." 5 4 Quoting the remark, referred to
above, by Senator Williams in the legislative histo-
ry, the Board stated that the comment "shows that
Congress intended that the appropriateness of
health care units should be determined by the
Board's traditional community-of-interest crite-
ria." 55 The Board continued:
Beginning with the analysis of the legislative
history described above, a majority of the
Board decided to apply traditional community-
of-interest criteria to decide the unit issues
raised by these initial cases [referring to the six
initial lead unit cases in the health care area
cited on pp. 875-876 of the decision]. Applica-
tion of these criteria led the Board majority to
conclude that the Board's unit approach to the
industrial sector would also suit the health care
industry; i.e., satisfy the policy objective of
Section 9(b)-to guarantee employees the ful-
lest freedom to exercise the rights granted by
the Act-and avoid proliferation. [Emphasis
supplied.] [Id. at 876.]
" Id. at 363.
'4 239 NLRB at 873.
"' Id. at 875.
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board concluded that both units limited to
maintenance employees and powerhouse employees
in health care institutions were appropriate based
on industrial standards, stating at 878:
Under American Cyanamid Company [131
NLRB 909 (1961)], and the pre-1974 test for
powerhouse units, the issue is essentially
whether the employees sought are in [sic]
identifiable group with a community of inter-
est that is sufficiently separate or distinct from
the other unrepresented service and mainte-
nance employees to warrant separate represen-
tation. For this reason, we find both tests are
consistent with the approach we have taken to
unit issues in the health care industry.
The Board, referring to a comment of Senator Taft
in the legislative history,5 6 decided that Congress
merely did not want the Board to create,5 7
. . . a unit pattern similar to that of the con-
struction industry, where employees have been
grouped into units according to craft skills and
job functions. If the pattern of the construction
industry were used as a model for the health
care industry, health care employees would be
grouped into units according to "each profes-
sional interest and job classification." 58
In today's decision, the majority accurately ob-
serves at the outset:
We announced [in Allegheny] that community-
of-interest standards, as set forth in American
Cyanamid Company, would be applied to
health care maintenance employee unit deter-
minations. American Cyanamid did not involve
a health care employer, but rather dealt with
the factors tending to establish that the mainte-
nance employees therein had demonstrated a
distinct community of interest sufficient to
warrant their own bargaining unit, separate
from the production employees; i.e., level of
skills; amount of work integration with pro-
duction employees; degree of interchange be-
tween production and maintenance depart-
ments; degree of shared supervision; and loca-
tion of the maintenance department. Applying
56 Senator Taft said, "The administrative problems from a practical
operational viewpoint and labor relation [sic] viewpoint must be consid-
ered by the Board on this issue [of unit proliferation]. Health-care institu-
tions must not be permitted to go the route of other industries, particular-
ly the construction trades, in this regard." Leg. Hist., supra at 114.
s7 239 NLRB at 875.
is Former Member Penello answered this argument succinctly in his
dissent in Allegheny, stating, inter alia at 883: "[A]ny impartial reading of
the sentence quoted discloses that it refers generally to the necessity of
not duplicating the unit mold of other industries in the health care field,
and cites the construction trades only as a particularly undesirable exam-
ple of unit proliferation."
these factors to the factual setting in Allegheny
General, the Board found that the maintenance
employees at that hospital should be granted
their own unit. [supra, 1025-1026.]
This statement is clear, as were the statements
quoted previously from the Allegheny decision
itself, that the Board determines health care units
on the same community-of-interest basis it does in
other industries. Nonetheless, noting that the
United States Court of Appeals for the Third Cir-
cuit had denied enforcement to the Board's order
in Allegheny, the majority suggests that its decision
was "imprecise" and "susceptible to misinterpreta-
tion," thus resulting in unfavorable appellate
review. (Supra at 1026) Then, after discussing the
legislative history and many of the same Board unit
determinations that were analyzed in Allegheny, my
colleagues declare that, "The most explicit evi-
dence that the Board does not adhere to traditional
unit criteria in health care unit determinations is
our decision in Duke University," [217 NLRB 799
(1975)] (at 1028), in which the Board refused to
grant separate representation to switchboard oper-
ations at a hospital. Finally, the majority flatly
states that, "As should be clear from this decision,
the Board has not adopted the unit approach used
in non-health care industries." (Supra at 1032-33.)
A disinterested observer is compelled to note
that, although the Board is reaching the same result
which it did in Allegheny, and although it reviews
most of the same previous Board decisions deter-
mining hospital units that it did in that case, the
present rationale contradicts that set forth in Alle-
gheny. In brief, the Board in Allegheny decided that
Congress intended for the Board to apply its tradi-
tional, industrial sector, community-of-interest test
to health care facilities, and that the mandate
against proliferation meant only that Congress did
not desire to see unit fragmentation along the lines
of construction industry. And the Board said in Al-
legheny that it had been following exactly this
course since the passage of the health care amend-
ments and would continue to do so. Today, how-
ever, the Board declares that it has not, does not,
and will not apply traditional principles of unit de-
termination to the health care industry. Rather, it
asserts that the Board has,
... identified certain groups of employees
commonly found in a health care institution:
physicians, registered nurses, other profession-
al employees, technical employees, business
office clerical employees, service and mainte-
nance employees, and skilled maintenance em-
ployees. Often these groups of employees con-
stitute the entire employee complement, and,
1036
ST. FRANCIS HOSPITAL
almost invariably, all employees will fall into
one of these enumerated categories. Based on
our experience in examining the employee
complement at health care facilities, we have
determined that these seven named classifica-
tions represent the groupings of employees
that may constitute appropriate units for bar-
gaining. Only after determining that the unit
sought fits one of these classifications do we
then apply our traditional unit principles to de-
termine whether the specific employees in-
volved do, in fact, display the requisite com-
munity of interest to warrant separate repre-
sentation. [Supra at 1029.]
The basic difficulty with this is that in Allegheny
and other decisions the Board has explicitly stated
that the community-of-interest test was the means
by which the several groups which normally com-
prise the entire employee complement at any health
care institution were found to be appropriate; e.g.,
the application of the American Cyanamid test for
determining the appropriateness of maintenance
units in the health care as well as the non-health
care field. Furthermore, it is plain that the basic
units which the Board says it finds appropriate in
the health care field are the same ones which, to
the extent there is an analogy, it finds appropriate
in the industrial sector: business office clericals,
technical employees, maintenance employees, and
service (production) and maintenance employees.
In addition, as the majority acknowledges later in
its opinion (sl. op., p. 25), the Board since Allegheny
has also found appropriate a unit of chauffeur-driv-
ers in a hospital.59
III.
Based upon this newly developed rationale, my
colleagues in the majority analyze a number of
Board health care unit decisions to demonstrate
that traditional principles have not been followed
and that the Board has avoided proliferation of
bargaining units as contemplated by Congress. The
cases cited by the majority support neither point,
and will be treated briefly.
The majority first notes that in St. Catherine's
Hospital,6 ° it declined to grant a separate unit of
LPNs apart from all other technical employees, on
the basis that the footnote reference in the congres-
sional admonition's citation of Extendicare of West
Virginia, Inc.,8 1 disclosed a legislative intent that
69 Michael Reese Hospital and Medical Center, 242 NLRB 322 (1979).
o0 St. Catherine's Hospital of Dominican Sisters of Kenosha, Wisconsin.
Inc., 217 NLRB 787 (1975).
el Extendicare of West Virginia, Inc., d/b/a St. Luke's Hospital, 203
NLRB 1232 (1973). As stated in section I of this opinion, Senator Taft
commented that the footnote, "By our reference to Extendicare, we do
the Board not approve units limited to LPNs.
What my colleagues overlook is that the Board has
decided in the industrial sector that "a unit of tech-
nical employees is inappropriate where it does not
include all in that category." 6 2 What they also
overlook is that, in otherwise citing Extendicare
with approval in the legislative history, Congress
plainly placed its imprimatur upon the denial of
units limited to technical employees. Nevertheless,
the Board has granted such units in opposition to
congressional intent.6 3 Accordingly, the Board can
claim little credit for failing to subdivide a techni-
cal unit by job classification when Congress did
not approve of granting separate technical units.
Next, my collagues observe that, in Kaiser Foun-
dation Hospitals,6 4 the Board refused to permit a
separate unit of pharmacists apart from other unre-
presented professionals (the registered nurses were
already represented). However, they fail to add
that the Board in Kaiser refused to give the unit
based upon application of traditional industrial unit
criteria:6 5
. . . as we stated in Mercy Hospitals of Sacra-
mento, Inc., 217 NLRB [765] (1975), "Thus, al-
though there is a diversity of skills between
each of these professional groups, their skills,
interests, and working conditions are, in many
respects, no more diverse than those of em-
ployees in a production and maintenance unit
in the industrial sphere or in the overall serv-
ice and maintenance unit in the health care in-
dustry. . . ." Although the pharmacists obvi-
ously share a greater community of interest
with each other than they do with the other
professional employees, we do not consider
that they possess interests evidencing commu-
nity of interest with each other separate from
that shared with the other employees in the
health care industry.
The Board further points to its decisions in Jersey
Shore Medical Center-Fitkin Hospital,66 where it re-
fused to allow a separate unit of nursing school in-
structors apart from other which it denied separate
not necessarily approve all of the holdings of that decision," was inserted
because, "Part of the unit findings in that case, it can be argued, was
overly broad and not consistent with minimization of the number of units
in health care institutions." In Extendicare, the Board permitted a unit of
LPNs separate from a unit of service, maintenance, and other, non-LPN
technical employees, and also, contrary to the position of the employer,
excluded business office clerical employees from the service, mainte-
nance, and technical unit.
6' General Electric Company, 173 NLRB 399, 400 (1968).
"s The leading cases are Nathan and Miriam Barnert Memorial Hospital
Association d/b/a Barnert Memorial Hospital Center, 217 NLRB 775
(1975), and Newington Children's Hospital, 217 NLRB 793 (1975).
^' 219 NLRB 325 (1975).
as Id. at 326.
66 225 NLRB 1191 (1976).
1037
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representation to "Code 101," or registered nurses,
and New York Univeristy Medical Center,6 7 in non-
tenure track psychiatrists, apart from "Code 102,"
or tenure (or tenured) track psychiatrists, and other
physicians. It is evident in both cases that, although
the Board referred to the congressional mandate
against hospital unit proliferation, it relied on nu-
merous conventional factors which clearly showed
that neither petitioned-for group had a separate
community of interest under traditional princi-
ples. 6s In short, the Board seeks to prove that it
has limited the proliferation of hospital units by re-
fusing to give a certain classification of registered
nurses their own unit, or to grant a category of
psychiatrists a unit separate even from other psy-
chiatrists, though it is plain that neither unit would
have been appropriate under any circumstances-
with or without an expression of special congres-
sional concern.
The majority also refers to Levine Hospital of
Hayward, Inc.,69 wherein the Board refused to give
7 medical clerks and transcribers a separate unit
apart from some 150 nonprofessional employees,
who were already represented in units of service
and maintenance employees, business office clerical
employees, and X-ray technicians. After an exten-
sive recitation of relevant facts, the Board conclud-
ed that these employees shared "a very close com-
munity of interest with the employees in the cur-
rently existing service and maintenance unit," and
should be included in that unit if they desired rep-
resentation. 7 ° Plainly, the Board was confronted
by a very unusual set of circumstances in Levine, a
petition for a tiny number of unrepresented, non-
professional employees, where the other nonprofes-
sional employees were already divided into three
units, and where the petitioned-for employees
shared a "very close" community of interest with
employees in the service and maintenance unit. The
denial of residual status to such a unit under these
exceptional conditions can scarcely be deemed a
major contribution toward containing unit prolif-
eration in the health care industry.
As alluded to previously, the Board is of the
opinion that its refusal of a separate unit to switch-
board operators in Duke University, supra, marks its
most explicit deviation from traditional unit criteria
in health care facilities. Chairman Murphy and
Members Fanning and Jenkins denied the unit,
finding that, although the switchboard operators
possessed a distinct community of interest, the
mandate against nonproliferation precluded them
6I New York University Medical Center, a Division of New York Universi-
ty, 217 NLRB 523 (1975).
68 225 NLRB at 1193; 217 NLRB at 526.
*' 219 NLRB 327 (1975).
70 Id. at 328.
from granting the unit. Members Kennedy and
Penello found that such a unit did not possess a
separate community of interest either in the health
care or in any other industry. 71 My review of the
facts persuades me that Members Kennedy and
Penello properly found that, under our usual com-
munity-of-interest criteria, the unit was inappropri-
ate. Furthermore, I know of no instance in the in-
dustrial sector in which such a unit has been found
appropriate, nor do I know of another instance in
which such a unit has been requested in a health
care facility. Thus, failing to grant switchboard op-
erators their own units is insignificant as an exam-
ple of Board concern over fragmentation of units
in health care institutions.
Later in their opinion, the majority notes that a
unit limited to registered nurses was denied in
Mount Airy Psychiatric Center,7 2 but fails to consid-
er that the Board did so on the basis that the nurses
therein did not share a community of interest sepa-
rate from that of other employees. Finally, in Appa-
lachian Regional Hospitals,73 cited by the majority,
the Board included business office clericals in an
overall unit of nonprofessional employees because
that was the unit requested by Petitioner:
[T]he business office clericals share a commu-
nity of interest with the other employees suffi-
cient to warrant their inclusion in the unit. It
has long since been settled that the unit sought
need only be an appropriate unit, not the most
appropriate unit.
In sum, the cases relied on by the majority to es-
tablish that the Board has followed the congres-
sional mandate against unit proliferation in health
care institutions fall into three categories: those
cases in which, although arising in a health care
setting, unit determinations were clearly made on
the same basis they would have been in any other
industry (St. Catherine's Hospital, Kaiser Foundation
Hospitals, Mount Airy Psychiatric Center, and Appa-
lachian Regional Hospitals); those cases in which,
although explicitly relying on the congressional
mandate in company with numerous traditional fac-
tors to deny a unit, the Board would clearly have
found the units involved inappropriate entirely
upon the community-of-interest factors alone
(Jersey Shore Medical Center and New York Univer-
sity Medical Center); and those cases in which the
unit denied was so insignificant, and the precedent
thus set so limited, as to amount to a trivial inhibi-
7' 217 NLRB at 800, fn. 8.
72 Mount Airy Foundation d/b/a Mount Airy Psychiatric Center, 253
NLRB 1003 (1981).
7' Appalachian Regional Hospitals, Inc., Operator of June Buchanan Pri-
mary Care Center, 233 NLRB 542, 544 (1977).
1038
ST. FRANCIS HOSPITAL
tion on unit fragmentation (Levine Hospital of
Hayward and Duke University).
IV.
The courts of appeals have been clear and con-
sistent in holding that the Board must give effect to
the congressional admonition against unit prolifera-
tion and not apply traditional standards to decide
unit issues in health care institutions. Time and
again, the courts have denied enforcement to
Board bargaining orders that did not comply with
congressional intent. A brief, circuit-by-circuit,
review of the important courts of appeals cases fol-
lows.
The Second Circuit, in N.L.R.B. v. Mercy Hospi-
tal Association,7 4 refused to uphold a Board finding
that a unit limited to hospital maintenance employ-
ees was appropriate, stating:
Our reading of the legislative history leads us
to conclude that in the 1974 amendment Con-
gress was expressing concern not only that
health care institutions be spared the egregious
unit proliferation of the construction trades but
that less extreme unit fragmentation arising
from application of usual industrial unit crite-
ria could also impede effective delivery of
health care services. .... Thus, we hold along
with our sister circuits that when the Board
makes a unit determination for health care in-
stitution employees, traditional community of
interest factors "must be put in balance against
the public interest in preventing fragmentation
in the health care field."
The court thus clearly rejected the "construction
trades" rationale advanced by the Board in Alleghe-
ny (see sec. II of this opinion).
The Third Circuit has denied enforcement of a
Board bargaining order based on a unit limited to
boilerroom operators, St. Vincent's Hospital v.
N.L.R.B., 7 5 and twice denied enforcement in cases
involving orders based on units limited to mainte-
nance employees, Memorial Hospital of Roxborough
v. N.LR.B. 7 6 and Allegheny General Hospital v.
N.L.R.B. 77 In St. Vincent's, the court said: 78
The legislative history of the health care
amendments . . . makes it quite clear that
Congress directed the Board to apply a stand-
ard in this field that was not traditional. Prolif-
eration of units in industrial settings has not
been the subject of congressional attention but
"4 606 F.2d 22, 27 (1979), cert. denied 445 U.S. 971 (1980).
7 567 F.2d 588 (1977).
76 545 F.2d 351 (1976).
"7 608 F.2d 956 (1979).
'8 567 F.2d at 592.
fragmentation in the health care field has
aroused legislative apprehension. The Board
therefore should recognize that the contours of
a bargaining unit in other industries do not
follow the blueprint Congress desired in a hos-
pital.
In Allegheny, the court noted that the traditional
American Cyanamid standard for determining the
appropriateness of industrial maintenance units, em-
braced by the Board for application to health care
facilities in its decision in the case, was improper;
"American Cyanamid does not, in any way, consid-
er the effects of bargaining unit fragmentation or
the special public interest in hospital unit determi-
nation." 79
The Seventh Circuit has declined to approve
units limited to maintenance employees, N.L.R.B.
v. West Suburban Hospital,80 wherein the court
said that the Board made "mere lip-service men-
tion" of the congressional mandate, and to boiler-
room operators, N.L.R.B. v. Mary Thompson Hospi-
tal,8 1 stating, "Contrary to the position asserted by
the Board, the proper focus in unit determinations
in a hospital setting is not solely a traditional com-
munity of interest analysis."
The Ninth Circuit overruled the Board's decision
to permit registered nurses a separate unit in
N.L.R.B. v. St. Francis Hospital of Lynwood,8 2
noting, inter alia, that, "From the legislative history
of the 1974 Amendments to the Act, it is apparent
that Congress sought to encourage the Board to
find broader bargaining units in the health care in-
dustry rather than narrower ones." Referring to
Senator Williams' remarks in the legislative history,
quoted supra, the court concluded that:8 3
. . . his statement was that "a notable disparity
of interests between employees in different job
classifications [emphasis added by court]"
could sometimes require a number of bargain-
ing units. We view that language and the re-
maining legislative history of the 1974 Amend-
ments to the Act as requiring the Board to de-
termine not the similarities among employees
in the same job classification (indeed the fact
that they share the same classification would
inevitably lead to the discovery of many simi-
larities), but instead the "disparity of interests"
among employee classifications which would
prevent a combination of groups of employees
into a single broader unit thereby minimizing
7' 608 F.2d at 971.
*o 570 F.2d 213, 216 (1978).
" 621 F.2d 858, 862 (1980).
"a 601 F.2d 404, 414 (1979).
as Id. at 419.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit proliferation. The congressional approval
of the trend toward broader units in the health
care industry indicates an awareness that the
traditional factor of community of interests
would be subordinated to the directive against
undue proliferation. However, by including
non-profit hospitals within the Act, Congress
sought to extend to hospital employees effec-
tive labor rights. By focusing upon the dispar-
ity of interests between employee groups
which would prohibit or inhibit fair represen-
tation of employee interests, a balance can be
made between the congressional directive and
the employees' right to representation.
The court then remanded the case to the Board to
decide the unit issue in light of this standard.s 4
The Tenth Circuit has, on three occasions, de-
clined to approve units limited to registered nurses.
In Presbyterian/St. Luke's Medical Center,8 5 the
court said:
The legislative history here reveals a strong
current of congressional concern for the prob-
lems engendered by unwarranted unit frag-
mentation whether it be in composition or
scope. As we view it, the Board's refusal to
consider Congress' directive with regard to
scope issues has subjected the health care in-
dustry to the very dangers Congress sought to
prevent.
The court specifically adopted the "disparity of
interests" standard erected by the Ninth Circuit for
unit determination in the health care industry. The
other cases in which the court did not uphold reg-
istered nurses units are Beth Israel Hospital and
Geriatric Center v. N.L.R.B. s8 and St. Anthony Hos-
pital Systems v. N.L.R.B. 8 7 These two decisions
were recently reaffirmed in pertinent part after en
banc consideration by the Tenth Circuit, 688 F.2d
697 (1982).
v.
Having carefully reviewed the legislative history
and the court decisions interpreting it, I arrive at
the conclusion that, in a health care institution, sep-
arate units composed of all professional employees
and all nonprofessional employees are appropriate
for purposes of collective bargaining.8 8 I have fur-
"4 Accord: N.LR.B. v. HMO International/California Medical Group
Health Plan, 678 F.2d 806 (9th Cir. 1982).
"s 653 F.2d 450, 455 (1981).
s" 677 F.2d 1343 (1981).
" 655 F.2d 1028 (1981).
I8 Sec. 9(bXl) of the statute specifically gives professional employees
the right to be represented separately from nonprofessional employees.
ther reached the conclusion, along with the Ninth
and Tenth Circuits, that a more limited unit of
either professional or nonprofessional employees
may be appropriate, but only where it is clearly es-
tablished that the employees in the proposed unit
have a notable disparity of interests from employ-
ees in the larger unit which would prohibit or in-
hibit fair representation for them if they were
denied separate representation. s9
I turn now to an evaluation of the facts in this
case in light of that standard. The maintenance em-
ployees whom Petitioner would represent are
drawn from 4 of the Employer's 90 departments.
They constitute 39 employees out of a total hospi-
tal complement of some 1,300 employees and a
service and maintenance complement of 438 em-
ployees. The requested unit is made up of six gen-
eral maintenance mechanics, one electronics techni-
cian, two carpenters, two painters, one plumber,
three electricians, six boiler operators, one
painter/vinyl hanger, one X-ray processor mechan-
ic, two cabinetmakers, one pneumatic tube mechan-
ic, one utility operator, one refrigerator mechanic,
two communication technicians, one HVAC (heat-
ing, ventilating, and air-conditioning) mechanic,
one HVAC trainee/helper, one utility mechanic,
two maintenance helpers, one groundskeeper, and
three refuse and linen collectors.
It must be recognized initially that the Employer
contracts out a substantial amount of its mainte-
nance work, including major electrical and plumb-
ing assignments. Charles Upchurch, the Employer's
chief engineer, testified that half of the mainte-
nance budget, $200,000 to $250,000 per year, is de-
voted to hiring independent contractors. According
to Upchurch, there are two reasons for this:
One reason is that most construction and re-
modeling requires permits, and these contrac-
tors have the qualifications and get permits to
do construction. The other is that our men,
primarily, have come up through the ranks
and have never been through the apprentice-
ship program or a journeyman program to
89 The assertion by the majority that application of the disparity-of-
interest test results in a determination of only the "most appropriate" unit
is plainly incorrect, inasmuch as a petitioner may establish the appropri-
ateness of a smaller unit where the test is met.
Also, the majority's suggestion that Senator Taft's bill, S. 2292, which
would have specified four appropriate units in health care institutions,
was not enacted because it was "overly stringent" is wrong. The point
was capably answered by the Ninth Circuit in NLR.B. v. HMO
International/California Medical Group Health Plan, supra, 678 F.2d at
808:
Senator Taft proposed an archetypical limitation of four units per fa-
cility, the units to be divided along the lines of professional, techni-
cal, clerical, and service and maintenance. These divisions were not
enacted, and it is not clear whether they were thought to be too
broad, too narrow, or merely too rigid.
1040
ST. FRANCIS HOSPITAL
give them the experience necessary to do some
of the technical work.
In fact, the hospital does not currently employ any
maintenance worker who has achieved journeyman
status. This leaves the hospital's employees, accord-
ing to Upchurch, "to take care of the basic non-
technical skills of repairing and maintenance to all
equipment and structures within and outside the
hospital." It is fair to conclude, therefore, that the
petitioned-for employees possess no significant
level of skill which would militate toward separate
representation.
The evidence is that maintenance employees
spend between 80 and 95 percent of their time
working throughout the hospital itself. In so doing,
maintenance employees have substantial and con-
tinuing contact with other employees, particularly
service employees. They work with service em-
ployees in many of the same areas, often on the
same equipment and facilities, and in close proxim-
ity and cooperation with them. Indeed, the major-
ity acknowledges this (at 1034):
. . . the majority of the functions performed
by maintenance employees necessitates their
working throughout the entire facility, wher-
ever their expertise is needed at the time. In-
stalling, repairing, and maintaining all the
equipment required in the effective functioning
of the hospital is dependent upon the presence
of maintenance employees in all parts of the
facility. Therefore, these employees are in fre-
quent contact with every category of health care
personnel, but they perform their duties inde-
pendently. [Emphasis supplied.]
Looking at other relevant facts, the Regional Di-
rector himself found that, "The hospital maintains a
single pay plan for hourly-rated service and main-
tenance employees known as Pay Plan A." He also
found that, "All service and maintenance employ-
ees are eligible to receive the same fringe benefits.
Furthermqre, there is centralized control of labor
relations policies, centralized maintenance of per-
sonnel records and a uniform system of discipline
and discharge." In finding the requested unit ap-
propriate, the majority notes that there is "com-
plete separation of supervision and direction be-
tween service and maintenance employees," but
fails to acknowledge there is separate supervision
among maintenance employees as well, because
they are divided into four different departments
each having independent supervision. Service em-
ployees are similarly divided among themselves
into separately supervised departments.
To summarize, these facts demonstrate that not
only do the maintenance employees in this case not
have a notable disparity of interests from other
nonprofessional employees, but they do not share a
community of interest sufficient to justify separate
representation on a traditional basis: (1) there is
substantial contracting out of maintenance work
because in-house employees do not have necessary
qualifications and skills; (2) no current maintenance
employees have achieved journeyman-skill status;
(3) maintenance employees are assigned to perform
tasks requiring only "basic non-technical skills"; (4)
maintenance employees spend the vast majority of
their time working throughout the hospital, in sub-
stantial and cooperative contact with service em-
ployees; (5) service and maintenance employees are
subject to the same pay plan; (6) service and main-
tenance employees are eligible to receive the same
fringe benefits; (7) there is centralized control of
labor relations policies and centralized maintenance
of personnel records; (8) there is a uniform system
of discipline and discharge; and (9) there is separate
supervision among maintenance employees in dif-
ferent maintenance departments just as there is for
service employees.
Vl.
The foregoing review conclusively demonstrates
what the Board itself conceded in Allegheny Gener-
al Hospital and other cases that it uses the tradition-
al community-of-interest standard to determine ap-
propriate units in the health care industry and that
the resulting unit pattern follows that in the indus-
trial sector. Second, it is crystal clear that the legis-
lative history of the 1974 amendments to the Act
indicates that Congress intended for the Board to
make a serious effort to minimize the number of
bargaining units in the health care industry to
reduce the likelihood of jurisdictional disputes and
work stoppages interfering with patient care, and
that it clearly did not want the Board to duplicate
the industrial unit scheme. Further, where the
Board has denied requested units in hospitals, it has
explicitly done so on the basis of traditional princi-
ples; or, although referring to the congressional ad-
monition against unit proliferation, it has reached
the same result it would have under traditional
principles; or, where it is arguable that a different
result was reached based on recognition of the leg-
islative history, it has been on the basis that con-
gressional intent is adequately fulfilled by strictly
refusing to allow units of telephone switchboard
operators and residual units of medical clerks and
transcribers. Finally, it has been shown that the
facts here do not warrant a separate unit for main-
tenance employees under application of a commu-
nity-of-interest standard, much less the disparity-of-
interest standard, which I here adopt.
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No matter how many artful semantic rerationali-
zations of its health care unit determination policy
that the Board may invent, it will not persuade the
courts of appeals to join it in ignoring the express
will of Congress: the repeated refusal of the courts
to uphold Board unit determinations made on a
business-as-usual basis is sure testimony to that. I,
therefore, respectfully suggest that it is time for my
colleagues in the majority to show their flexibility
and pragmatism and acquiesce in the process of
bringing Board law in this area into line with con-
gressional intent as interpreted by numerous courts
of appeals.
MEMBER HUNTER, dissenting:
I must dissent from the majority's holding that
the traditional community-of-interest test is the
proper standard for unit determination in the health
care industry and from the conclusion that the
record in the instant case warrants finding appro-
priate a unit limited to the Employer-hospital's
maintenance employees. In using the oft-rejected
community-of-interest test to find a maintenance
unit appropriate here, the majority has once again
paid "mere lip-service mention"9 0 to Congress' ex-
plicit directive that the Board give due considera-
tion to preventing undue proliferation of bargaining
units in the health care industry. Although the
courts have repeatedly criticized the Board's unit
determination in this industry,9 1 the majority's
analysis of the facts of this case continues to dem-
onstrate an inability or unwillingness to recognize
the simple fact that what would be "an appropriate
unit" in another industry is not "an appropriate"
unit in the health care industry. As set forth more
fully, infra, Congress' direction that the Board limit
the number of bargaining units in the health care
industry mandates that the Board apply a stricter
standard in determining appropriate units in this in-
dustry. In my view, the disparity-of-interest analy-
sis, as set forth infra, embodies such a standard.
Furthermore, application of that standard to the
facts of this case demonstrates that the maintenance
90 N.LR.B v. West Suburban Hospital, 570 F.2d 213, 216 (7th Cir.
1978).
*' N.LR.B. v. HMO International/California Medical Group Health
Plan, 678 F.2d 806 (9th Cir. 1982); Beth Israel Hospital and Geriatric
Center v. N.LR.B., 688 F.2d 697 (10th Cir. 1982), reaffirming en bane
Beth Israel Hospital and Geriatric Center v. N.LR.B., 677 F.2d 1343 (10th
Cir. 1981), and St. Anthony's Hospital Systems v. N.LR.B., 655 F.2d 1028
(10th Cir. 1981); N.LR.B. v. Fredrick Memorial Hospital, Inc., 111
LRRM 2680 (4th Cir. 1982); Presbyterian/St. Luke's Medical Center v.
N.LR.B., 653 F.2d 450 (10th Cir. 1981); N.LR.B. v. Foundation for Com-
prehensive Health Services, 654 F.2d 731 (9th Cir. 1981); Mary Thompson
Hospital. Inc. v. N.LR.B., 621 F.2d 858 (7th Cir. 1980); Allegheny General
Hospital v. N.LR.B., 608 F.2d 965 (2d Cir. 1979); N.LRB. v. Mercy Hos-
pital Association, 606 F.2d 22 (2d Cir. 1979), cert. denied 445 U.S. 971
(1980); N.LR.B v. St Francis Hospital of Lynwood, 601 F.2d 404 (9th
Cir. 1979); N.LR.,. v. West Suburban Hospital, 570 F.2d 213 (7th Cir.
1978); St. Vincent's Hospital v. N.LR.B., 567 F.2d 588 (3d Cir. 1977).
employees do not have such a disparity of interest
from the Employer's other employees as to war-
rant representation in a separate unit.
Much has been written about the 1974 health
care amendments to the National Labor Relations
Act.9 2 Accordingly, I will touch only briefly on
the Board's preamendment treatment of this indus-
try and on the legislative history of the amendment
itself. Although the Wagner Act did not treat the
health care industry differently from other indus-
tries, the Board did not assert jurisdiction over
nonprofit hospitals until 1942.93 Congress' unfavor-
able reaction to the assertion of jurisdiction was re-
flected in the Taft-Hartley amendments in 1947
which specifically excluded nonprofit hospitals
from the jurisdiction of the Act.9 4
The exclusion of nonprofit hospitals was the sub-
ject of some criticism in the years following pas-
sage of Taft-Hartley. In the face of that criticism
and of increasing labor unrest in the health care in-
dustry, Congress reconsidered the issue. In 1974,
the health care amendments were enacted and the
exemption of nonprofit hospitals was removed be-
cause there "was no acceptable reason"9 5 to ex-
clude employees of such hospitals from the cover-
age of the Act. The Act, however, was not amend-
ed by merely removing the exclusion of nonprofit
hospitals from the definition of "employer" in Sec-
tion 2(2). Instead, Congress recognized that the
entire health care industry was unique and should
be governed by certain restrictions not applicable
to other industries. g9 Thus, the health care amend-
ments curtailed the right to engage in strikes and
picketing and contained special provisions regard-
ing contract termination and mediation require-
ments. 9 7
In addition, Congress recognized that the para-
mount public interest in maintaining uninterrupted
accessibility to health care required further protec-
tion. Thus, if the National Labor Relations Act
were to apply to the health care industry, special
care would have to be taken to avoid the "ultimate
disruptions in health care institutions caused by or-
ganization drives and related activities such as
92 See, generally, Vernon, Labor Relations in the Health Care Field
Under the 1974 Amendments to the National Labor Relations Act: An Over-
view and Analysis, 70 NW.L Rev., 202 (1975).
g3 Central Dispensary and Emergency Hospital, 50 NLRB 393 (1943),
enfd. 145 F.2d 852 (D.C. Clr. 1944), cert. denied 324 U.S. 847 (1945).
94 Labor-Management Relations Act, Sec. 101, amending National
Labor Relations Act, Sec. 2(2) (1947).
9s S. Rept. 93-766, 93d Cong., 2d sess. 3 (1974), "Legislative History
of the Coverage of Nonprofit Hospitals Under the National Labor Rela-
tions Act" (hereafter Leg. Hist.) at 10.
96 Leg. Hist., supra at 143, Statement by Senator Dominick.
97 Act of July 26, 1974, Public Law 93-360, 88 Stat. 395, amending
National Labor Relations Act, 29 U.S.C. §§ 151-168 (1971). See in partic-
ular, Sec. 8(d) and (g) of the National Labor Relations Act, as amended.
1042
ST. FRANCIS HOSPITAL
strikes and slow downs."9 8 Congress concluded
that the object of minimizing work stoppages re-
sulting from initial organizational activities, juris-
dictional disputes, and sympathy strikes could best
be achieved, and thus the likelihood of disruptions
to health care would be reduced, by ensuring that
only the minimal number of units would be found
appropriate in the health care industry. According-
ly, the House and Senate Committee Reports con-
tained the following directive to the Board:
EFFECT ON EXISTING LAW
BARGAINING UNITS
Due consideration should be given by the
Board to preventing proliferation of bargaining
units in the health care industry. In this con-
nection, the Committee notes with approval
the recent Board decisions in Four Seasons
Nursing Center, 208 NLRB [403] (1974), and
Woodland Park Hospital, 205 NLRB [888]
(1973), as well as the trend toward broader
units enunciated in Extendicare of West Virgin-
ia, 203 NLRB [1232] (1973).1
' By our reference to Extendicare, we do not necessrily ap-
prove all of the holdings of that decision."
Previous Board and court decisions have set
forth at length various statements by Congressmen
and Senators regarding this directive. Virtually
every Senate and House legislator speaking in
regard to the passage of the amendments admon-
ished the Board to avoid a proliferation of bargain-
ing units and directed the Board to make every
reasoned attempt to accommodate broader units in
the health care industry.
In particular, Senator Taft, a principal cosponsor
of the nonprofit hospital bill, in an attempt to clari-
fy any misunderstanding as to Congress' intent,
stated:
Certainly, every effort should be made to pre-
vent a proliferation of bargaining units in the
health care field and this was one of the cen-
tral issues leading to agreement on this legisla-
tion. In this area there is a definite need for
the Board to examine the public interest in de-
termining appropriate bargaining units.
N.LR.B. v. Delaware-New Jersey Ferry Ca,
128 F.2d 130 (3rd Cir. 1942). 00
Similarly, immediately prior to the final vote ap-
proving the amendments, Senator Williams, an-
other cosponsor, also attempted to clarify Con-
gress' admonition to the Board:
"* Leg. Hist., smpr at 142, Statement by Senator Dominick.
" Leg. Hist., suprm at 12.
100 Leg. Hist., supra at 255.
While the Board has, as a rule, tended to avoid
an unnecessary proliferation of collective bar-
gaining units, sometimes circumstances require
that there be a number of bargaining units
among nonsupervisory employees, particularly
where there is such a history in the area or a
notable disparity of interest between employ-
ees in different job classifications.
While the Committee clearly intends that
the Board give due consideration to its admo-
nition to avoid an undue proliferation of units
in the health care industry, it did not within
this framework intend to preclude the Board
acting in the public interest from exercising its
specialized experience and expert knowledge
in determining appropriate bargaining units.
(N.LR.B. v. Delaware-New Jersey Ferry Co.,
128 F.2d 130 (3d Cir. 1942)).101°
As indicated by the legislative history and by
every circuit court that has considered this
issue,10 2 Congress clearly intended that, in deter-
mining appropriate units in the health care area,
the Board should apply a stricter standard than its
traditional community-of-interest analysis. As
pointed out by the Third Circuit in St. Vincent's
Hospital v. N.LR.B., 567 F.2d 588, 592 (1977):
The legislative history of the health care
amendments . . . makes it quite clear that
Congress directed the Board to apply a stand-
ard in this field that was not traditional. Prolif-
eration of units in industrial settings has not
been the subject of congressional attention but
fragmentation in the health care field has
aroused legislative apprehension. The Board
therefore should recognize that the contours of
a bargaining unit in other industries do not
follow the buleprint Congress desired in a hos-
pital.
Nevertheless, a majority of the Board has contin-
ued to ignore court criticism and has persisted in
usurping "major policy decisions properly made by
Congress. . . ."'s by failing to keep the number
of bargaining units in the health care industry to a
minimum.
Thus, in Allegheny General Hospital, 239 NLRB
872 (1978), where the Board found that a unit of
maintenance workers very similar to the unit
sought in this case constituted an appropriate unit,
the Board stated that: "Congress intended that the
appropriateness of health care units should be de-
'*' Leg. His., sup at 363.
o10 See fn. 91. supm
so" Alkgheny General Hospital v. N.LRB., 606 F.2d at 968, citing
Ameneian Ship Building Ca v. N.LR.B., 380 U.S. 300, 318 (1965).
1043
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termined by the Board's traditional community of
interests criteria .... 104 In response to applica-
tion of the community-of-interest analysis, the
Ninth Circuit in N.L.R.B. v. St. Francis Hospital of
Lynwood,' 0 6 held that the Board had impermissibly
established an irrebuttable presumption that a unit
of registered nurses was appropriate and, further,
that the Board's exclusion of proffered evidence re-
garding the appropriateness of an overall profes-
sional unit was contrary to the congressional admo-
nition to avoid a proliferation of units in the health
care industry. In addition, the court pointed out
that the Board's use of the community-of-interest
analysis in the health care industry was also con-
trary to the congressional admonition. Focusing on
Senator Williams' statement, cited above, the Ninth
Circuit pointed out:
However, Senator Williams did not state that
an examination of community of interests
should be made or that it could justify a deter-
mination that a separate unit was appropriate.
Rather, his statement was that "a notable dis-
parity of interests between employees in differ-
ent job classifications [emphasis added by the
court]" could sometimes require a number of
bargaining units. We view that language and
the remaining legislative history of the 1974
amendments to the Act as requiring the Board
to determine not the similarities among em-
ployees in the same job classification (indeed
the fact that they share the same classification
would inevitably led to the discovery of many
similarities), but instead the "disparity of inter-
ests" among employee classifications which
would prevent a combination of groups of em-
ployees into a single broader unit thereby
minimizing unit proliferation. The congression-
al approval of the trend toward broader units
in the health care industry indicates an aware-
ness that the traditional factor of community
of interests would be subordinated to the di-
rective against undue proliferation. However,
by including nonprofit hospitals within the
Act, Congress sought to extend to hospital em-
ployees effective labor rights. By focusing
upon the disparity of interests between em-
ployee groups which would prohibit or inhibit
fair representation of employee interests, a bal-
ance can be made between the congressional
directive and the employees' right to represen-
tation. o06
104 239 NLRB at 875.
o10 601 F.2d 404 (9th Cir. 1979).
106 601 F.2d at 419.
Subsequently, in Newton-Wellesley Hospital, 250
NLRB 409 (1980), the Board reconsidered its ap-
proach to registered nurse units in particular and
health care units in general in light of the Ninth
Circuit's St. Francis holding. Initially, the Board
agreed with the court's conclusion that the Board
had erroneously established an irrebuttable pre-
sumption in favor of the appropriateness of a regis-
tered nurse unit. Accordingly, the Board dis-
avowed such a per se approach to unit determina-
tions in the health care field. With regard to the
Ninth Circuit's "disparity of interest" standard,
however, the Board argued that the court's dis-
agreement with the Board's approach "may be
largely semantic" and "that the legislative history
of the health care amendments clearly does not re-
quire the Board to forego a consideration of the
community of interests among employees within
the health care industry."'0 7 Utilizing the tradi-
tional community-of-interest approach, and focus-
ing on the similarities existing among registered
nurses rather than focusing on the dissimilarities be-
tween the registered nurses and that employer's
other professional employees that might or might
not have entitled them to separate representation,
the Board reiterated its opinion first expressed in
Mercy Hospitals of Sacramento, Inc.,' 08 that nurses
are entitled to separate representation.
However, the majority's Newton-Wellesley analy-
sis fared no better in the courts than had the
Board's previous attempts to formulate an accept-
able approach to unit determinations in the health
care industry.°0 9 Thus, the instant case was chosen
as the new vehicle to set out the majority's views.
Here, the majority once again dons sackcloth, pays
verbal homage to the circuits, and undertakes a
flawed analysis of legislative history and precedent,
all in an effort to breathe new life into its approach
to unit determinations in this unique industry. Ini-
tially, in response to the unrelenting chorus of
court criticism, the majority admits that its decision
in Allegheny General Hospital was "imprecise" and
that judicial criticism has been "justif[ied]"; howev-
er, the majority does not disavow the underlying
holding of that case. Instead of showing deference
to congressional intent and undertaking a truly dif-
ferent approach to health care unit determinations,
the majority merely trots out its threadbare reading
of legislative intent and outlines the unit determina-
tion procedure that it has utilized since the passage
o10 Newton- Wellesley Hospital, 250 NLRB at 411-412 (1980).
J'0 224 NLRB 419 (1976), enforcement denied on other grounds 589
F.2d 968 (9th Cir. 1978), cert. denied 440 U.S. 910 (1979).
109 See, for example, Presbyterian/S Luke's Medical Center, the en
banc decision in Beth Israel Haospital and Geriatric Center, HMO Interna-
tional Hospital, and Frederick Memorial Hospital, cited more fully in fn.
91, supra.
1044
ST. FRANCIS HOSPITAL
of the health care amendments. With regard to the
disparity-of-interest analysis, the majority contends
that Congress did not intend to change the Board's
basic community-of-interest approach to unit deter-
minations and that elements of the disparity-of-in-
terest approach are encompassed by the communi-
ty-of-interest test.
In brief, the majority argues that prior case law
has identified a maximum of seven potentially ap-
propriate units: physicians, registered nurses, other
professional employees, technical employees, busi-
ness office clerical employees, service and mainte-
nance employees, and maintenance employees. The
majority claims that:
Only after determining that the unit sought fits
one of these classifications do we then apply
our traditional unit principles to determine
whether the specific employees involve do, in
fact, display the requisite community of inter-
est to warrant separate representation.... If,
however, petitioner seeks to represent a unit of
employees smaller than one of these identified
groups, for example, a unit consisting only of
physical therapists or telephone operators, we
will dismiss that petition before reaching the
second stage of analysis, unless we are present-
ed with extraordinary and compelling facts
justifing allowance of a smaller unit. " 0
Apparently, the majority believes that this "two-
tiered" approach to health care unit determinations
satisfies Congress' admonition to avoid an undue
proliferation of bargaining units and meets the
courts' demand that the Board set out a logical and
consistent rationale for its health care unit determi-
nations.
I disagree that the majority's opinion reaches
either of these objectives. In my view this "new"
analysis has the intellectual underpinnings of a
house of cards that amounts to little more than a
rehash of the same old analysis that has been re-
jected by every circuit that has considered the
issue."' On the one hand, the majority contends
that it is enunciating a new health care unit deter-
mination test. On the other hand, it justifies that
new test by relying on seven potentially appropri-
ate units derived from a community-of-interest
analysis that fails to take into consideration Con-
gress' admonition against a proliferation of
'"O Supra at 1029. In addition to the seven listed potentially appropri-
ate units, the majority has not disavowed its finding that boilerroom em-
ployees also constitute a separate and distinct appropriate unit, see. for
example, Sr. Vincent's Hospital, 223 NLRB 638 (1976), enforcement
denied 567 F.2d 588 (3d Cir. 1977). Also, Sec. 9(b) of the Act requires
that a ninth unit of guards be given separate representation.
Il See fn. 91, supra.
units.l l2 Further, under the majority's two-tiered
approach, a petition requesting a unit smaller than
one of the seven designated units will be dismissed
unless "extraordinary and compelling facts" are
presented which justify the smaller unit. The ma-
jority contends that under such an analytical
scheme, cases such as Michael Reese Hospital and
Medical Center, 242 NLRB 322 (1979), where a
unit of chauffeur 'drivers was found appropriate,
will be the exception and not the rule. However, a
fair reading'of that case reveals no "extraordinary"
or "compelling" facts that justify a separate unit
and, despite Awl h majority's assurances to the con-
trary, it is apparent that the so-called exceptional
cases of today will, under the majority's analysis,
become commonplace tomorrow. I 3
I am also troubled by the majority's finding of
presumptively appropriate health care units.' 4 Al-
though it is clear that the Board is entitled to adopt
presumptions, such presumptions are subject to ju-
dicial review "for consistency with the Act and for
rationality."' '5 "In order for the Board to utilize a
presumption in this context, it must, at some prior
occasion, articulate the bases for that presumption
in a manner in which a court may review its pro-
priety."' 16 Other than explaining that Board prece-
dent (based on an industrial community-of-interest
standard) has established that these seven units rep-
resent groupings of employees commonly found at
health care institutions, the majority offers no
cogent rationale for settling on these seven units.
For example, the majority points out that it has
refused to find appropriate a separate unit of phar-
macists even though the pharmacists were phys-
ically isolated, had separate training and supervi-
sion, and had little contact or interchange with
other employees. '1 7 Similarly, the majority refused
to find appropriate a separate unit of switchboard
operators, even though those employees were sepa-
12I Allegheny General Hospital, 239 NLRB at 873 and 875. I am in
agreement with the discussion of precedent set out in the Chairman's dis-
senting opinion which points out that the traditional industrial communi-
ty-of-interest analysis underlies the majority's health care unit determina-
tions.
13a I also find no merit in the majority's reliance on Appalachian Re-
gional Hospitals. Inc. Operator of June Buchanan Primary Care Center. 233
NLRB 542 (1977), for the proposition that rather than finding more than
seven units in exceptional cases, the Board more often finds fewer than
seven units. In Appalachian Regional Hospitals, the union requested a
wall-to-wall nonprofessional unit, and the case stands for nothing more
than that even the majority does not find such a unit to be inappropriate.
1 1 Although the majority asserts that the seven potentially appropri-
ate units are not presumptions, a use of seven "starting points" certainly
sounds like presumptions or at a minimum something akin to presump-
tions. See Weinsteins Ewidence, vol. I, art. Ill, pars 300{01]-300{03], and
the definition of "presumption" set forth in Black's Law Dictionary Re-
vised Fourth Edition.
I Beth Israel Hospital v. N.LR.B., 437 U.S. 483, 501 (1978).
uL6 St. Francis Hospital, 601 F.2d at 416, fn. 14.
i Kaiser Foundation Hospitals, 219 NLRB 325 (1975).
1045
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rately supervised and had little contact with other
employees. x1 s There is no explanation, however,
why, under its analysis, separate units of physicians
and nurses are presumptively appropriate even
though those professional employees share no more
of a community of interest among their professions
than the community of interest shared by pharma-
cists."" Similarly, there is no explanation why a
unit of maintenance employees who have diverse
job responsibilities, different lines of supervision,
and extensive contact with other similarly skilled
employees is presumptively appropriate, while,
under the same analysis, the switchboard operators
in Duke University were not entitled to separate
representation.1 2 0 As the Ninth Circuit in St. Fran-
cis pointed out, 12 1 it is obvious that employees
sharing the same classification will have a com-
monality of interest, but Congress emphatically in-
structed the Board that something more than a
commonality of interest is needed in fashioning
health care units, because, otherwise, every work
classification would constitute a presumptively ap-
propriate unit.
In conclusion, I find no merit to the majority's
contention that by adding a preliminary "screen-
ing" step to its unit determinations-establishing
seven presumptively appropriate units-it has ac-
cepted Congress' directive to limit the number of
bargaining units in the health care industry.1 2 2
When the verbal chaff is culled from that analysis,
it is clear that the majority's unit determinations
focus on the commonality of interest shared among
the employees in the requested unit rather than on
the dissimilarities of interest those employees have
with the health care employer's other employees.
"I Duke University, 217 NLRB 799 (1975).
"9 Arguably, under the majority's community-of-interest analysis, it
would appear that the pharmacists in Kaiser Foundation were more de-
serving of a separate unit than are physicians and nurses.
120 Again, under the majority's community-of-interest analysis, it
would seem that the switchboard operators in Duke University, rather
than the maintenance employees here, had more of a claim for separate
representation.
a"' See fn. 106, supra
"' As I pointed out earlier, in addition to the enunciated seven units,
Sec. 9(b) of the Act requires an eighth unit of guards, the majority finds
a ninth unit of boilerroom operators, and, under the standards set forth in
Michael Rem e spra, the majority easily will find additional units. On the
basis of that number of units alone, the majority's analysis, which finds
nine-plus units as a starting point, fails to consider Congress' concern
with a proliferation of units. It is clear that that number of units creates
the type of situation that Congress specifically instructed the Board to
avoid, where wages are likely to leapfrog from contract negotiations to
contract negotiations and strikes are more likely to occur and to interfere
with the public's paramount interests in having uninterrupted ccess to
health care. See N.LR.R v. HMO International/California Medical
Group, 678 F.2d at 808. Unlike the majority, I would not find that nine or
more units constitutes the norm for the health care industry, and I cannot
envision finding that number of units unless truly exceptional record facts
establish that that number of units is warranted. Indeed it is unlikely that
one would find many on-health care employers, comparable in size to
this hospital, who have been required to bargain in such a substantial
number of separate units.
Such an approach does not accommodate Con-
gress' direction to avoid a fragmentation of health
care units and fails to meet the standards of review
established by the Act and required by the courts.
Accordingly, the majority's "new analysis" is defi-
cient on its face.
II.
My approach to health care unit determination is
based on the view that the legislative history bars
the Board from applying its community-of-interest
standard in making health care unit determinations.
Initially, I note that the amendments themselves
contain the unmistakable message that the health
care industry is to be treated differently. Thus, as
noted previously, the amendments curtail the right
to engage in strikes and picketing, and establish
special mediation and notice requirements for the
health care field. Senator Taft best summarized his
colleagues' views concerning the unique nature of
health care in saying:
It is important to remember that hospitals
are not factories or retail establishments, and
patients are not raw material or merchandise.
Hospitals are for human beings and actions
pursuant to this legislation must take this fact
into account.1 2 3
Further, in directing that the Board avoid undue
proliferation of bargaining units, Congress instruct-
ed the Board to examine the public interest in de-
termining appropriate bargaining units.'2 4 As Sen-
ator Dominick pointed out: "The public interest
. . . in the need for uninterrupted health care de-
livery at all times is paramount in considering legis-
lation for bringing health care institutions under
Federal labor relations law." 125 Accordingly, in
n"' Leg. Hist., nipra at 116.
"4 In directing that the Board examine the public interest in determin-
ing appropriate bargaining units, both Senators Williams and Taft re-
ferred the Board to N.LR. v. Delaware-New Jersey Ferry Company, 128
F.2d 130 (3d Cir. 1942) ee fna. 100 and 101, spra. In that case. the
Board had applied its traditional community-of-interest standards and
found appropriate a unit of maritime employees that included both li-
censed ship oflicers and deckhands. (Prior to the Taft-Hartley amend-
ments of 1947, supervisor were protected by the Act and could be in-
cluded in the same unit as employees) On petition for enforcement of the
Board Order directing bargaining in that unit, the Third Circuit acknowl-
edged that the Board's unit determination are normally entitled to great
deference. The court, however, refused to enforce the bargaining order
because the Board's unit finding, in that case, had exceeded the limits of
its administrative discretion. The court noted that the Board's traditional
community-of-interest approach had failed to take into conideration the
unique nature of the maritime industry and had ignored the public inter-
est. In a similar fashion. the majority's adherence to a traditional commu-
nity-of-interest standard in the health care industry ignores the public in-
terest by failing to accommodate the special status accorded to the health
care industry.
"'I Leg. Hist., spr at 142. In St Vincent's Hapital v. N.LR, 567
F.2d at 592, the court defines the public interest as preventing unit "fing-
mentation in the health care field" See also NLRA v. Mercy Hoptal
Ascmaton, 606 F.2d 22, 27 (2d Cir. 1979), cert. denied 445 U.S. 971
(1980).
1046
ST. FRANCIS HOSPITAL
the context of this description of the public interest
and of the congressional directive that the public
interest is paramount and is best served by avoiding
a proliferation of bargaining units, I agree with the
Ninth Circuit's views expressed in its St. Francis
decision that, in making unit determinations in the
health care field, the Board must focus on the "dis-
parity of interests" among health care employees
rather than applying the "community of interests"
standard that is applicable in other industries. Thus,
when a petition is filed raising a question concern-
ing representation among a group of health care
employees, I will find that the requested unit is ap-
propriate only where the record establishes that,
because of a disparity of interest that prohibits fair
and adequate representation, the requested employ-
ees are entitled to separate representation.' 2 6 If the
record fails to establish such a disparity of interest,
I will dismiss the petition. As pointed out by the
Tenth Circuit:
It is not the similarity of employees' training,
hours, conditions and activities which deter-
mine the appropriateness of the unit, it is,
rather, the dissimilarity of interest relative to
the collective bargaining process that deter-
mines which employees are not to be included
in a proposed unit. The proper approach is to
begin with a broad proposed unit and then ex-
clude employees with disparate interests. One
should not start with a narrow unit, such as
registered nurses, and then add professionals
with similar interests.127
111.
With regard to the record in the instant case, I
generally agree with the facts as set forth by the
majority; however, since I find that the majority's
community-of-interest analysis is clearly at odds
with congressional intent, I find it necessary to re-
1"' Although I agree generally with the Chairman's reading of con-
gressional intent to avoid unit proliferation in the health care industry
and with the view that a disparity-of-interest test is the proper approach
to insure that end. I do not join the Chairman in finding that only two
units are presumptively appropriate in this industry. Given the unique
nature of the health care industry, and Congress' recognition of that fact,
I am reluctant to apply any "presumptions" in determining appropriate
units in this context.
I also agree with the Chairman that the majority is wrong and mis-
states the Legislative History when it asserts that Senator Taft's Bill S.
2292 which would have specified four appropriate units in health care in-
stitutions was "rejected" because it was "overly stringent." Initially, I
must point out that Bill S. 2292 was never brought up for a vote, and,
contrary to the assertion of the majority, it was not "rejected." It is clear
that no legislative intent may properly be drawn from congressional inac-
tion. US v. Price, 361 U.S. 304 (1960). As the Ninth Circuit noted in
N.L R.B. v. HMO International, 678 F.2d at 808, in failing to inact Bill S.
2292, it is unclear whether Congress found the four units too broad, too
narrow, or merely too rigid.
"17 Presbyterian/St. Luke's Medical Center v. N.LR.B., 563 F.2d at
457, fin. 6.
examine the record in order to determine whether
the Union (the party seeking a narrower unit) has
met its burden of establishing that the working
conditions of the requested employees are so dis-
similar from that of the Employer's other employ-
ees as to warrant finding that a separate mainte-
nance unit is appropriate. As set forth more fully in
the majority's opinion, the hospital is administra-
tively divided into 90 departments and employs ap-
proximately 1,300 employees, including nearly 400
employees in various service departments and 39
employees in 4 maintenance departments. The Em-
ployer maintains centralized labor relations policies
and personnel records for all of its employees, and
a uniform system of discharges and discipline is ad-
ministered throughout the facility.
With regard to wage rates and fringe benefits,
the Employer has a separate wage and benefit plan
for its 438 service and maintenance employees. As
might be expected, individual pay rates are general-
ly geared to the skills and training needed for the
job. The skill level of the maintenance employees
varies from several highly trained and licensed
boiler operators to the unskilled positions of
groundskeeper, refuse and linen collector, and
maintenance helper. Accordingly, the pay rates of
the maintenance employees range from the highest
pay grades in the service and maintenance pay plan
for the few highly skilled positions to a wide dis-
persion of pay grades for the other positions,
which is similar to the dispersion of pay grades for
the Employer's service employees. 12 8 Also, the
record indicates there that there have been up to
seven transfers (a nearly 20-percent rate) between
the service departments and maintenance depart-
ments during the past several years.
As mentioned earlier, the 39 maintenance em-
ployees are administratively subdivided into 4 de-
partments, and the nearly 400 service employees
are similarly subdivided into a number of depart-
ments. Supervision for both the maintenance em-
ployees and service employees is structured along
departmental lines, and there is as much a disparity
regarding supervision between maintenance em-
ployees in different departments as there is between
maintenance and service employees in different de-
partments. Most of the maintenance employees
work throughout the hospital spending 80 to 95
percent of their time working at the same work lo-
cations in close cooperation with the Employer's
s8s Undisputed record evidence establishes that most of the mainte-
nance work requiring extensive training and skills is contracted out to in-
dependent contractors because the Employer's maintenance employees do
not have the background or training to undertake such work. Approxi-
mately one-half of the Employer's maintenance budget is allocated to
hiring outside contractors to do the more highly skilled jobs.
1047
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employees, and in particular with the service
employees. Clearly, maintenance employees have
substantial work contact with the Employer's other
employees, and their work duties are closely inte-
grated with that of the Employer's other employ-
ees and in particular with the service employees.
In sum, the general working conditions of the
Employer's service and maintenance employees are
very similar. However, in the enigmatic style that
only it understands, the majority concludes that for
the reasons set forth in its "imprecise" Allegheny
General Hospital decision,' 2 9 a separate unit of
maintenance employees is warranted here. In doing
so, however, it ignores or at least downplays cer-
tain critical factors. Thus, the majority points out
that maintenance employees report to separate lo-
cations at the beginning of their shifts, but it fails to
mention that most maintenance employees spend 80
to 95 percent of their time working throughout the
hospital in close contact with the Employer's other
employees. The majority also points out that main-
tenance department employees are separately su-
pervised, but, again, it fails to mention that, since
supervision is structured on a departmental basis,
maintenance employees themselves are supervised
separately from employees in other maintenance
departments. The majority contends that mainte-
nance employees have greater skills and experience
than the Employer's service employees. However,
the record establishes that only a few highly
trained and licensed maintenance positions require
significantly greater skills and experiences and that
a substantial portion of the maintenance department
positions are at essentially the same skill and expe-
rience level as positions in the service department.
Finally, although the majority claims that mainte-
nance employees do not share duties with service
employees, it fails to note that the maintenance em-
ployees that do not share duties with service em-
ployees also do not share duties with maintenance
employees in other maintenance departments. More
importantly, a substantial proportion of mainte-
nance employees work throughout the hospital,
have extensive contact with other employees, and
do share work duties with the Employer's other
employees. Clearly, the work functions of a sub-
stantial portion of maintenance employees is closely
integrated with that of the Employer's other em-
ployees.
"' The majority finds that the maintenance employees involved herein
are similar to the employees in Faulkner Hospital, 242 NLRB 47 (1979),
and Southern Baptist HospitaLs Inc., 242 NLRB 1329 (1979). In both of
those cases, the Board found that separate maintenance units were appro-
priate "for the reasons set forth in Allegheny General Hospital."
To summarize, the record herein fails to establish
a disparity of interest among the maintenance em-
ployees and the Employer's other employees suffi-
cient to justify representation in a separate unit: (1)
there is centralized control of labor relations and
centralized control of personnel records; (2) there
is a uniform system of discipline; (3) there is a
common pay and benefit plan for maintenance and
service employees; (4) the pay rates and general
working conditions of a substantial proportion of
maintenance employees are similar to the Employ-
er's service employees; (5) the four maintenance
departments are not an administratively distinct
unit; (6) supervision for each of the four mainte-
nance departments is structured in a fashion similar
to the supervision of other departments; (7) there is
extensive functional intergration between mainte-
nance employees and other employees; (8) there is
extensive work contact between maintenance em-
ployees and other employees at worksites through-
out the hospital; (9) the skills and job functions of a
substantial proportion of maintenance employees
are very similar to those of other employees; and
(10) given the size of the requested unit, there has
been a significant number of transfers. According-
ly, based on the record before us in this case, it ap-
pears to me that even in terms of the majority's tra-
ditional community-of-interest standard, the major-
ity has drawn the wrong inferences and reached
the wrong conclusions in determining that a main-
tenance unit is appropriate. Therefore, I would dis-
miss the petition.
Finally, in closing, I must emphatically register
my disappointment that this Board is no closer to
establishing the unit framework that was intended
by Congress to bring "a good collective-bargaining
climate"' 3 0 to the health care industry than it was
when the amendments to the Act were passed in
1974. I do not understand my colleagues' apparent
disregard for congressional direction and its appar-
ent disdain for court criticism. Such an attitude can
only have the effect of eroding public and judicial
confidence in the Board's ability to fulfill the mis-
sion for which it was created. Unfortunately, the
health care industry, health care employees, pa-
tients, and the general public will have to wait for
yet another day for the stabilizing influence of the
National Labor Relations Act to be brought to this
industry.
13S Leg. Hist., supra at 375, remarks of Senator Taft.
1048