St. Francis Hospital

National Labor Relations Board - Board Decisions

Aug 13, 1984

271 N.L.R.B. 948 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Francis Hospital and International Brotherhood
of Electrical Workers, Local Union No. 474,
AFL-CIO. Case 26-CA-10060
13 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
Upon a charge filed by the Union on 21 January
1983, the General Counsel of the National Labor
Relations Board issued a complaint on 1 February
1983 against the Company, the Respondent, alleg-
ing that it has violated Section 8(a)(5) and (1) of
the National Labor Relations Act.
The complaint alleges that on 5 January 1983,
following a Board election in Case 26-RC-6109,
the Union was certified as the exclusive collective-
bargaining representative of the Company's em-
ployees in the unit found appropriate. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Secs. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 17 January 1983 the Compa-
ny has refused to bargain with the Union. On 8
February 1983 the Company filed its answer admit-
ting in part and denying in part the allegations in
the complaint. The Respondent admits being
served with the charge, its status as a health care
institution, the Union's status as a labor organiza-
tion, and that it meets the Board's jurisdictional
standards. The Respondent denies that the employ-
ees designated as the appropriate bargaining unit
by the Board in its Decision on Review constitute
an appropriate unit. The Respondent admits that
the Union was duly certified as the exclusive bar-
gaining representative of all the employees in the
unit, that the Union has requested and is requesting
bargaining, and that it has refused and continues to
refuse to bargain with the Union. However, the
Respondent denies that by its refusal to bargain it
has violated Section 8(a)(5) and (1) and Section
8(d) of the Act.
On 22 February 1983 the General Counsel filed a
Motion for Summary Judgment. On 28 February
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
Respondent filed a response and requested oral ar-
gument.1 Thereafter, the American Hospital Asso-
I The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs in the underlying representation case
adequately present the issues and the positions of the parties.
271 NLRB No. 160
ciation filed a brief amicus curiae in support of the
Respondent's position.
Ruling on Motion for Summary Judgment
In its response to the Notice to Show Cause, the
Respondent contends that special circumstances
exist which require the Board to reexamine its de-
cision in the underlying representation proceed-
ing. 2 The Respondent maintains that, in deciding
that a bargaining unit comprised solely of its main-
tenance employees is appropriate, the Board major-
ity failed to give proper weight to the congression-
al admonition to avoid undue unit proliferation in
the health care industry. The Respondent cites sev-
eral circuit court opinions which disagree with
Board decisions finding that units comprised of
health care maintenance employees are appropriate
for bargaining and argues that the Board should
defer to judicial interpretation of this issue.3 The
Respondent also points to Member Hunter's dissent
in the underlying representation case in support of
its contention that the majority's determination
cannot stand.
For the reasons set forth below, we have decid-
ed to vacate our earlier Decision on Review and
Direction. We recognize that the arguments pre-
sented by the Respondent warrant a more complete
response than we have given up to this point, par-
ticularly with regard to the criticisms directed at
the Board from the courts of appeals. With the
benefit of many years of thoughtful and often con-
flicting analyses among the Board members, courts
of appeals, and legal commentators, we have for-
mulated a revised health care employee unit ap-
proach which we believe will fulfill our dual obli-
gations of adhering to the legislative intent behind
enactment of the 1974 health care amendments4 to
the Act and guaranteeing the representational inter-
ests of health care employees.
Review of the record reveals that in Case 26-
RC-6109 the petition was filed by the Union on 28
September 1979. On 5 November 1979 the Region-
al Director issued his Decision and Direction of
Election, in which he found, inter alia, that the pe-
titioned-for maintenance employees, plus employees
in two less skilled classifications not included in the
petition, 5 share a community of interest sufficient
I St. Francis Hospital, 265 NLRB 1025 (1982) (St. Francis I).
3 Mary Thompson Hospital v. NLRB, 621 F.2d 858 (7th Cir. 1980);
NLRB v. Mercy Hospital Assn., 606 F.2d 22 (2d Cir. 1979), cert. denied
445 U.S. 971 (1980); NLRB v. West Suburban Hospital, 570 F.2d 213 (7th
Cir. 1978).
4 Pub. L. 93-360 §§ 1-4, July 26, 1974, 88 Stat. 395-397, 29 U.S.C. §§
152 (14), 158(d) and (g), 169, 183.
" The unit found appropriate consisted of:
Continued
948
ST. FRANCIS HOSPITAL
to warrant representation within their own unit. On
19 November 1979 the Respondent filed a request
for review of the Regional Director's decision, in
which the Respondent questioned the Regional Di-
rector's use of the community-of-interest analysis,
citing the unique statutory treatment of the health
care industry as well as judicial criticism of the
Board's traditional approach to health care employ-
ee unit determinations. The Respondent also disput-
ed certain facts contained in the Regional Direc-
tor's decision. On 4 December 1979 the Board
granted the Respondent's request for review and
directed that the ballots cast in the scheduled elec-
tion be impounded. The election was conducted on
7 December 1979 and the ballots were impounded.
On 16 December 1982 the Board issued its Deci-
sion on Review and Direction, with the majority
finding that the unit in which the election was held
was appropriate for bargaining and directing that
the impounded ballots be opened and counted. The
tally of ballots revealed that, of 43 eligible voters,
23 ballots were cast for the Union, and 20 votes
were cast against the Union; there were no chal-
lenged ballots. On 5 January 1983 the Regional Di-
rector certified the Union as the exclusive collec-
tive-bargaining representative of the employees in
the unit found appropriate.
Following a written bargaining request by the
Union about 10 January 1983 the Respondent, by
letter dated 17 January 1983, refused to recognize
or bargain with the Union as the exclusive repre-
sentative of the employees in the certified unit.
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations. However, this prohibition
against relitigation of representation issues in a sub-
sequent technical 8(a)(5) refusal-to-bargain situation
applies to the parties-the employer and the
union-and does not preclude the Board from re-
considering its own earlier action. In view of the
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. The two classifications not sought
by the Petitioner Union, but included by the Regional Director, are
the groundskeeper and the linen and refuse collectors.
history of controversy surrounding the issue of ap-
propriate bargaining units in the health care field-
and noting particularly the frequency with which
courts of appeals have disagreed with our unit de-
terminations-we have decided to reconsider our
earlier decision. 6
In the underlying representation case, the majori-
ty 7 set forth a two-tiered analytical paradigm to be
applied in all health care unit determinations. After
a discussion of the legislative history of the health
care amendments and a review of both pre- and
post-amendment cases involving health care bar-
gaining units, the majority identified seven groups
of employees which were deemed "potentially ap-
propriate" for bargaining in the health care field.
These seven are: physicians, registered nurses,
other professional employees, technical employees,
business office clerical employees, service and
maintenance employees, and skilled maintenance
employees. The majority stated that, with few ex-
ceptions, these seven classifications could accom-
modate the entire employee complement at most
health care facilities. The majority further stated
that it had derived these seven groups through
case-by-case application of its traditional unit deter-
mination principles, tempered by the congressional-
ly recognized special consideration of avoiding unit
multiplicity in the health care field. Because these
"potentially appropriate" units were in its view
nearly all-encompassing, the majority concluded
that, by limiting health care units to these seven,
undue proliferation would be prevented and em-
ployees' representational interests would also be in-
sured.
Accordingly, the majority stated that, when a
petition presented a request for one of these units,
the Board would apply a community-of-interest
test to the employees comprising the unit and, if a
community-of-interest was shown to exist, the unit
request would be granted. If no community-of-in-
terest were demonstrated the petition would be dis-
missed. On the other hand, if a petitioner sought a
I See NLRB v. West Suburban Hospital, 570 F.2d 213 (7th Cir. 1978);
NLRB v. HMO International, 678 F.2d 806 (9th Cir. 1982); Beth Israel
Hospital v. NLRB, 688 F.2d 697 (10th Cir. 1982), reaffirming en banc 677
F.2d 1343 (10th Cir. 1981); St. Anthony's Hospital Systems v. NLRB, 655
F.2d 1028 (10th Cir. 1981), reaffirmed en banc at 688 F.2d 697 (1982);
NLRB v. Frederick Memorial Hospital, 691 F.2d 191 (4th Cir. 1982);
Presbyterian/St Luke's Medical Center v. NLRB, 653 F.2d 450 (10th Cir.
1981), modified on different grounds by 688 F.2d 697 (1982); Mary
Thompson Hospital v. NLRB, 621 F.2d 858 (7th Cir. 1980); Allegheny Gen-
eral Hospital v. NLRB, 608 F.2d 965 (3d Cir. 1979); NLRB v. Mercy Hos-
pital Assn., 606 F.2d 22 (2d Cir. 1979), cenrt. denied 445 U.S. 971 (1980);
NLRB v. St Francis Hospital, 601 F.2d 404 (9th Cir. 1979); and St. Vin-
cent's Hospital v. NLRB, 567 F.2d 588 (3d Cir. 1977).
7 The full Board participated in St. Francis 1, with Member Zimmer-
man and former Members Fanning and Jenkins in the majority, and
Member Hunter and former Chairman Van de Water each filing a dis-
sent.
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit not among these seven, only the existence of
extraordinary circumstances could overcome the
presumption that such unit is inappropriate for bar-
gaining in the health care industry. In the underly-
ing case, the majority examined the composition of
the requested maintenance unit, as modified by the
Regional Director, found that the employees
shared a community-of-interest separate and apart
from other employees, and concluded that the unit
was appropriate.
However, Member Hunter and then Chairman
Van de Water, in separate dissents, disagreed with
both the approach used and the result reached by
the majority. Each discussed the unique societal
role of health care institutions and Congress' con-
cern about preventing disruptions in delivery of
health care services, citing the special statutory re-
quirements and limitations imposed on the industry
under Section 8(d) and (g) of the Act.8 Both dis-
sents also referred to the now well-known legisla-
tive admonition that the Board should avoid unit
proliferation in the health care field 9 because of the
8 Sec. 8(d) of the Act describes the duties of the parties in fulfilling
their collective-bargaining roles. The special provisions applicable to the
health care industry read as follows:
Whenever the collective bargaining involves employees of a health
care institution, the provisions of this section 8(d) shall be modified
as follows:
(A) The notice of section 8(d)(1) shall be ninety days; the notice of
section 8(d)(3) shall be sixty days; and the contract period of section
8(d)(4) shall be ninety days.
(B) Where the bargaining is for an initial agreement following cer-
tification or recognition, at least thirty days' notice of the existence
of a dispute shall be given by the labor organization to the agencies
set forth in section 8(d)(3).
(C) After notice is given to the Federal Mediation and Concilia-
tion Service under either clause (A) or (B) of this sentence, the Serv-
ice shall promptly communicate with the parties and use its best ef-
forts, by mediation and conciliation, to bring them to agreement.
The parties shall participate fully and promptly in such meetings as
may be undertaken by the Service for the purpose of aiding in a set-
tlement of the dispute.*
* Pursuant to Public Law 93-360, 93d Cong., S. 3203, 88 Stat.
396, the last sentence of Sec. 8(d) is amended by striking the
words "the sixty-day" and inserting the words "any notice" and
by inserting before the words "shall lose" the phrase ", or who
engages in any strike within the appropriate period specified in
subsection (g) of this section." In addition, the end of paragraph
Sec. 8(d) is amended by adding a new sentence "Whenever the
collective bargaining . .. aiding in a settlement of the dispute."
Sec. 8(g) states:
(g) A labor organization before engaging in any strike, picketing,
or other concerted refusal to work at any health care institution
shall, not less than ten days prior to such action, notify the institu-
tion in writing and the Federal Mediation and Conciliation Service
of that intention, except that in the case of bargaining for an initial
agreement following certification or recognition the notice required
by this subsection shall not be given until the expiration of the
period specified in clause (B) of the last sentence of section 8(d) of
this Act. The notice shall state the date and time that such action
will commence. The notice, once given, may be extended by written
agreement of both parties.
At S. Rep 93-766, 93d Cong., 2d Sess. 5 (1974), reprinted in "Legis-
lative History of the Coverage of Nonprofit Hospitals Under the Nation-
al Labor Relations Act, 1974" at 12; H. Rep. 93-1501, 93d Cong., 2d
Sess. 6-7 (1974), id. at 274-275. Hereafter this shall be referred to as Leg-
islative History
potentially disruptive effects which could be cre-
ated by competing bargaining interests. Both dis-
sents also focused on the many circuit court deci-
sions critical of the Board's repeated determinations
that units comprised solely of hospital maintenance
employees and units of registered nurses are appro-
priate. The Board's continued adherence to long-
established community-of-interest standards is one
factor often cited by these courts as indicative of
the Board's failure to adapt its processes to the spe-
cial circumstances of the health care field' ° and
both dissents suggested that using a "disparity-of-
interests" test instead could result in more favor-
able treatment before the circuits.
In the months since that split decision issued, we
have availed ourselves of the opportunity to reflect
on and reconsider the analyses and perspectives of-
fered by the Board Members and by the discussion
of several courts of appeals which reviewed these
unit determinations. After careful and thorough
consideration we are persuaded that the majority
approach in St. Francis I is contrary to the intent of
Congress and that the adoption of a disparity-of-in-
terests test can best effectuate our statutory obliga-
tions in health care unit determinations.
The dissents in St. Francis I emphasized that in
1974 when the health care amendments were en-
acted and the exemption of nonprofit hospitals was
removed, the Act was not amended by merely re-
moving the exclusion of nonprofit hospitals from
the definition of "employer" in Section 2(2). Con-
gress was concerned "that the needs of patients in
health care institutions required special consider-
ation in the Act,"1I and therefore imposed certain
restrictions not applicable to other industries. 1 2
Thus, the health care amendments curtailed the
right to engage in strikes and picketing and con-
tained special provisions regarding contract termi-
nation and mediation. 3
In addition, Congress recognized that the para-
mount public interest in maintaining uninterrupted
accessibility to health care facilities required that
further protection and special care would have to
be taken to avoid the "ultimate disruptions in
health care institutions caused by organization
drives and related activities such as strikes and
slow downs."14 Congress concluded that the
object of minimizing work stoppages resulting from
I' See, e.g., Allegheny General Hospital v. NLRB, 608 F.2d 965 (3d Cir.
1979); NLRB v. HMO International, 678 F.2d 806 (9th Cir. 1982); NLRB
v. Mercy Hospital Assn., 606 F.2d 22 (2d Cir. 1979), cert. denied 445 U.S.
971 (1980); Mary Thompson Hospital v. NLRB, 621 F.2d 858 (7th Cir.
1980).
1 Leg. Hist., above at 10.
12 Id at 143, Statement by Senator Dominick.
'3 See fn. 8, above.
'4 Leg. Hist., supra at 142, Statement by Senator Dominick.
950
ST. FRANCIS HOSPITAL
initial organizational activities, jurisdictional dis-
putes, and sympathy strikes could best be achieved,
and thus the likelihood of disruptions to health care
reduced, by minimizing the number of units appro-
priate in the health care industry. Accordingly, the
House and Senate Committee Reports contained
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).'
i By our reference to Extendicare, we do not necessarily 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 Senator and Representative 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
reasonable attempt to accommodate broader units
in the health care industry."6
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.L.R.B. v. Delaware-New Jersey Ferry Co., 128
F.2d 130 (3rd Cir. 1942).17
"1 Leg. Hist., supra at 12.
'6 See, e.g., Leg. Hist., supra at 142-143, Statement by Senator Domin-
ick; at 255, Statement by Senator Taft; at 363, statement by Senator Wil-
liams; 120 Cong. Rec. E4849-4850 (daily ed., July 2, 1974); statement by
Representative Ashbrook, 120 Cong. Rec. 16900.
I7 Leg. Hist., supra at 255.
Our dissenting colleague suggests that because Senator Taft was unsuc-
cessful in adding language to the health care amendments which would
have limited the number of bargaining units to four-professional, techni-
cal, clerical, and service and maintenance-our current use of the dispari-
ty-of-interests analysis somehow distorts congressional intent. Member
Zimmerman apparently infers from the alleged rejection of the Taft pro-
posal that Congress viewed four units as too few and that application of a
disparity-of-interests analysis will invariably result in even fewer than
Immediately prior to the final vote approving the
amendments, Senator Williams, another cosponsor,
also attempted to clarify Congress' admonition to
the Board:
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 interests 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.L.R.B. v. Delaware-New Jersey Ferry Co.,
128 F.2d 130 (3d Cir. 1942).)' s
As indicated by the legislative history and by the
circuit courtst9 Congress clearly intended that, in
determining 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. NLRB, 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
four units. The mere fact that the Taft proposal was not included in the
enacted legislation may not properly be attributed to its being perceived
as numerically too restrictive. There is no evidence as to whether the
lawmakers viewed the proposal as too broad, too rigid, too narrow, or
simply unnecessary. See NLRB v. HMO International, above, 678 F.2d
806 at 808, and Trustees of the Masonic Hall and Asylum Fund v. NLRB,
699 F.2d 626, 636 (2d Cir. 1983). Also the analysis we set forth today
establishes neither a minimum nor maximum number of appropriate bar-
gaining units, but rather permits the determination to be made on the
facts of the particular facility involved. We believe that this approach
comports with Congress' intent that the Board be free to exercise flexibil-
ity in dealing with unit determinations on a case-by-case basis.
s18 Leg. Hist., supra at 363.
19 Southwest Community Health Services v. NLRB, 726 F.2d 611 (10th
Cir 1984); NLRB v. HMO International, 678 F.2d 806 (9th Cir. 1982);
Beth Israel Hospital . .VLRB, 688 F.2d 697 (lOth Cir. 1982), reaffirming
en banc Beth Israel Hospital v. NLRB, 677 F.2d 1343 (1981), and St. An-
thony's Hospital Systems v. NLRB, 655 F.2d 1028 (1981) reaffirmed en
banc at 688 F.2d 697 (1982); NLRB v. Frederick Memorial Hospital. 691
F.2d 191 (4th Cir 1982); Presbyterian/St. Luke's Medical Center v. NLRB,
653 F.2d 450 (lOth Cir. 1981), modified on different grounds in 688 F.2d
697 (1982); Mary Thompson Hospital v. NLRB, 621 F.2d 858 (7th Cir.
1980); Allegheny General Hospital v. NLRB, 608 F.2d 965 (3d Cir. 1979);
NLRB v. Merry Hospital Assn., 606 F.2d 22 (2d Cir. 1979), cert. denied
445 U.S. 971 (1980); NLRB v. St. Francis Hospital, 601 F.2d 404 (9th Cir.
1979); NVLRB v. West Suburban Hospital, 570 F.2d 213 (7th Cir. 1978); St,
Vincent's Hospital v. NLRB, 567 F.2d 588 (3d Cir. 1977).
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 blueprint Congress desired in a hos-
pital.
The majority in St. Francis I recognized that the
Board had not complied with Congress' intent and
the courts' concerns and attempted to remedy the
problem by continuing to adhere to its traditional
community-of-interest test but adding a preliminary
"screening" step to its unit determination. That ap-
proach was designed to "limit" the number of po-
tentionally appropriate units to seven except for so-
called exceptional cases. Furthermore, Section 9(b)
of the Act requires an additional unit of guards.
Thus despite the screening step referred to in St.
Francis I, the results and the methods utilized to
reach those results remain basically the same. The
traditional community-of-interest test that the
Board applies in the industrial setting is used and
the same units that have been repeatedly rejected
by the courts of appeals are found potentially ap-
propriate. This large number of Board-sanctioned
units can hardly be what Congress, concerned with
minimizing disruptions in patient care, envisioned.
We therefore find that the majority approach in St.
Francis I fails to meet the standards desired by
Congress, established by the Act, and required by
the courts.
While courts of appeals have largely rejected the
Board's approach to health care unit determination
and have emphasized the Board must take into ac-
count the congressional admonition against unit
proliferation, they have not been unified upon a
proper standard for deciding appropriate units in
this industry. The principal division is between the
Ninth2 0 and Tenth 2 1 Circuits, which advocate a
"disparity-of-interests" test, and the Second,2 2
Eighth,2 3 and Eleventh2 4 Circuits which, although
acknowledging the necessity to restrict health care
units, disagree with that test.
The Ninth Circuit, in St. Francis Hospital, above,
refused to enforce a bargaining order based on a
determination that a registered nurses unit was ap-
propriate, and remanded the case to the Board.
20 NLRB v. St. Francis Hospital, 601 F.2d 404 (1979); NLRB v. HMO
International, 678 F.2d 806 (9th Cir. 1982).
"' Southwest Community Health Services v. NLRB, 726 F.2d 611 (1984);
Presbyterian/St. Luke's Medical Center v. NLRB, 653 F.2d 450 (1981),
modified on different grounds in 688 F.2d 697 (1981); St. Anthony's Hospi-
tal Systems v. NLRB, 655 F.2d 1028 (10th Cir. 1981), reaffirmed en banc
at 688 F.2d 697 (1981); Beth Israel Hospital v. NLRB, 677 F.2d 1343 (10th
Cir. 1981), modified on different grounds en banc 688 F.2d 697 (1981).
22 Trustees of the Masonic Hall v. NLRB, 699 F.2d 626 (1983).
23 Watonwan Memorial Hospital v. NLRB, 711 F.2d 848 (1983).
24 NLRB v. Walker County Medical Center, 722 F.2d 1535 (1984).
The court referred to the previously quoted re-
marks of Senator Williams in outlining the meaning
of "disparity-of-interests," as follows:
[H]is 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 . . . but instead
the "disparity of interests" among employee
classifications which would prevent a combi-
nation of groups of employees into a single
broader unit thereby minimizing unit prolifera-
tion. .... By focusing upon the disparity of in-
terests between employee groups which would
prohibit or inhibit fair representation of em-
ployee interests, a balance can be made be-
tween the congressional directive and the em-
ployees' right to representation.26
In adopting the same view, the Tenth Circuit
distinguished the "disparity-of-interests" test from
the "community-of-interest" standard in the follow-
ing manner:2 6
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 interests relevant 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.
The Ninth Circuit later cited this interpretation
with approval, stating,2 7 "Separate bargaining units
in the health care field must be justified in terms of
a disparity that precludes combination, not an inter-
nal consistency within a class that could justify sep-
aration."
Subsequently, however, the Second Circuit, up-
holding a Board-approved service and maintenance
unit (excluding technical and business office cleri-
cal employees) in a nursing home, took issue with
what it termed the "rigid disparity-of-interests test"
developed by the Ninth Circuit.2 8 Such a method
25 601 F.2d at 419.
26 Presbyterian/St. Luke's Medical Center, 653 F.2d at 457 fn. 6.
21 HMO International, 678 F.2d at 812 fn. 17.
28 Trustees of the Masonic Hall, 699 F.2d at 641 (emphasis added).
952
ST. FRANCIS HOSPITAL
of analysis, according to the court, "suggests that a
union has some obligation to petition to represent
wall-to-wall units,"2 9 and "would unnecessarily re-
strict the employees' right to choose their bargain-
ing representative." 3 0 The court, relying on its ear-
lier decision in NLRB v. Mercy Hospital Assn.31
(rejecting a unit limited to hospital maintenance
employees), described the correct legal approach as
follows: 3 2
When the National Labor Relations Board
makes a unit determination for health care
institution employees, traditional community
of interest factors "must be put in balance
against the public interest in preventing frag-
mentation in the health care field." St. Vin-
cent's v. NLRB, supra, 567 F.2d at 592. The
Board in its decision must specify "the
manner in which its unit determination . . .
implement[s] or reflect[s] that admonition
... " NLRB v. West Suburban Hospital,
supra, 570 F.2d at 216.
Similarly, the Eighth Circuit refused to follow
the "disparity-of-interests" standard used by its
sister circuits, and approved a technical employee
unit in Watonwan Memorial Hospital.3 3 According
to the court, "in resolving bargaining unit questions
in the context of health care institutions, the Board
may utilize its community of interest approach, but
it must also give express consideration to the 1974
congressional directive concerning unit prolifera-
tion."3 4
We are persuaded that the phrase "disparity-of-
interests" properly emphasizes that more is re-
quired to justify a separate unit in a health care in-
stitution than in a traditional industrial or commer-
cial facility. That is to say, the appropriateness of
the petitioned-for unit is judged in terms of normal
criteria,3 5 but sharper than usual differences (or
"disparities") between the wages, hours, and work-
ing conditions, etc., of the requested employees and
those in an overall professional or nonprofessional
unit must be established to grant the unit. Requir-
ing greater disparities in the usual community-of-in-
29 Id. at 641.
30 Id. at 642.
31 606 F.2d 22 (1979). cert. denied 455 U.S. 971 (1980).
3s 699 F.2d at 632.
JJ 711 F.2d 848.
34 Id. at 850.
35 The Board evaluates employees' wages, hours, and working condi-
tions; qualifications, training, and skills; frequency of contact and degree
of interchange with other employees; frequency of transfer to and from
the petitioned-for unit; commonality of supervision; degree of integration
with the work functions of other employees; area practice and patterns of
collective bargaining; and collective-bargaining history. See in general
Kalamazoo Paper Box Corp., 136 NLRB 134 (1962); J. Abodeely, R.
Hammer & A. Sandler, The NLRB and the Appropriate Bargaining Unit,
13-83 (rev. ed. 1981).
terest elements to accord health care employees
separate representation must necessarily result in
fewer units and will thus reflect meaningful appli-
cation of the congressional injunction against unit
fragmentation. s 6
At the same time, however, we believe the
Second Circuit was correct in Trustees of the Ma-
sonic Hall that application of a "rigid disparity-of-
interests" standard would be unwarranted. More
precisely, it has been argued that the Ninth Cir-
cuit's decision may be construed as holding that no
unit narrower than all professionals or all nonpro-
fessionals is permissible unless it can be shown that
the interests of the petitioned-for employees are so
divergent that fair representation for them would
be "prohibit[ed] or inhibit[ed]" without separate
representation.3 7 So stringently defined, it is diffi-
cult to envision circumstances that would allow
more than two units in a health care facility. As
observed by the Eighth Circuit, the test apparently
"always requires the Board to select the largest ap-
propriate bargaining unit." s3
In sum, we decline to substitute what borders on
a per se approach finding two units appropriate for
our previous position which automatically resulted
in as many as eight possible units.3 9 The courts, as
our review of their decisions has shown, have
always been cognizant of the congressional man-
date against unit proliferation in health care institu-
tions, and yet, where justified by the particular cir-
cumstances, have upheld units limited to technical
employees4 0 and service and maintenance employ-
s" See NLRB v. West Suburban Hospital, 570 F.2d 213. 215 (7th Cir.
1978) ("[Tlhe traditional criteria employed in making bargaining unit de-
terminations must be weighed in the context of Congress' admoni-
tion ... "). Accord: Trustees of the Masonic Hall, above; Mercy Hospital
Assn., above; Watonwan Memorial Hospital, above; Sr. Vincent's Hospital v.
NLRB, 567 F.2d 588, 592 (3d Cir. 1977).
37 601 F.2d at 419.
1s Watronwan Memorial Hospital, 711 F.2d at 850. It is not certain this is
what the Ninth Circuit itself intended. In HMO International, 678 F.2d at
812 fn. 17, the court stated that the disparity-of-interests standard was
simply "lainother way of saying ... that . . . the Board must make clear
to the reviewing court the definite manner in which [it is] implementing
the nonproliferation mandate." (Emphasis in original.)
3s Despite this explanation the dissent fears that the majority neverthe-
less harbors a "prediliction for only two basic units-professional and
nonprofessional." We emphasize again that we are not establishing a rigid
disparity-of-interests test that would always result in two broad units. We
will reach our unit determinations on a case-by-case basis, focusing on
the differences shown by the petitioned-for unit from other employees
and the similarities among the proposed unit members. The diverse
nature of today's health care industry-including nursing homes, small
hospitals, large medical centers, blood banks, outpatient clinics, etc.-pre-
cludes any generalization as to the appropriateness of any particular bar-
gaining unit. However, despite these diversities, the disparity-of-interests
test can and will be applied to all these facilities. We anticipate that after
records have been developed and a number of cases decided from these
records, certain recurring factual patterns will emerge and illustrate
which units are typically appropriate.
40 Watonwan Memorial Hospital, above; NLRB v. Hillview Health Care
Center, 705 F.2d 1461 (7th Cir. 1983); NLRB v. Sweetwater Hospital Assn.,
Continued
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees.41 We caution, however, that no unit is per se
appropriate and that separate representation must
be justified upon each factual record in light of the
disparity-of-interests test as we have refined it.
Turning to the instant facts, approximately 39
employees in the requested unit are divided among
4 of the hospital's 90 departments. They represent a
small minority of the 438 service and maintenance
employees. 4 2
The maintenance workers perform their duties
throughout the hospital (80 to 95 percent of the
time). They have significant and frequent work
contact with nearly all categories of health care
employees, particularly service employees. They
do not perform functions requiring a high degree
of skill: there are no journeymen level employees,
and independent contractors are hired to do diffi-
cult work. 43
The service and maintenance employees are sub-
ject to the same hourly pay plan and are eligible to
receive the same fringe benefits. Labor relations
policies at the hospital are centrally controlled, and
there is a uniform discipline and discharge
system.4 4 Maintenance employees are subject to
departmental supervision, as are service employees.
Finally, there have been seven transfers between
the service and maintenance departments in recent
years.
The facts thus disclose that the Employer's main-
tenance employees are lesser skilled individuals,
who work closely with and share the same basic
terms and conditions of employment as the much
larger group of service employees. The present
record thus fails to demonstrate a disparity of inter-
ests between the maintenance employees and other
nonprofessionals adequate to justify separate repre-
sentation. Nevertheless, we have decided, in the ex-
ercise of our discretion, to remand this case to
permit the parties to adduce further evidence bear-
ing upon the issue. We do this because, at the time
the case was litigated several years ago, the
Board's approach to unit determination was quite
different from what it is today, and the parties pro-
ceeded without the benefit of our current analy-
sis.4 5
604 F.2d 454, 458 (6th Cir. 1979) (the congressional policy "does not
mean that all non-professional hospital employees must be covered by a
single unit"); Bay Medical Center v. NLRB, 588 F.2d 1174 (6th Cir. 1978).
"4 Trustees of the Masonic Hall, above.
42 The total employee complement is 1300.
43 The Employer's chief engineer testified that half of the maintenance
budget is spent on outside contractors and that in-house employees
merely "take care of the basic nontechnical skills of repairing and mainte-
nance to all equipment and structures within and outside the hospital."
'44 Personnel records are also centrally maintained.
45 For the reasons stated in his dissent in St. Francis 1, Member Hunter
finds on the basis of the record here that the petitioned-for unit fails to
satisfy the disparity-of-interest test. Member Hunter notes that in St.
Francis I he would have dismissed the petition. In the present circum-
In reaching our decision to accept the "disparity-
of-interests" standard by adjudication in this case,
we have considered the alternative of establishing
the appropriate units in the health care field
through rulemaking as suggested by Member
Dennis.4 6 The critical question addressed in
today's decision-congressional intent regarding
hospital bargaining units-has been the subject of
prolonged litigation before the Board and in the
courts. The principles announced here represent a
clear rejection of Board precedent to this point
since the 1974 health care amendments. Were we
now to establish an overly rigid formulation of ap-
propriate units in the health care field without the
development of sufficient experience under the new
standards, we risk the danger of entering a second
decade of litigation in this field. As stated by the
Supreme Court in S.E.C. v. Chenery Corp., 332 U.S .
194, 202 (1974), and appropriately relied on in
NLRB v. Bell Aerospace Co., 416 U.S. 267, 294
(1974):
Not every principle essential to the effective
administration of a statute can or should be
cast immediately into the mold of a general
rule. Some principles must await their own de-
velopment, while others must be adjusted to
meet particular, unforeseeable situations.
Accordingly, we deny the General Counsel's
Motion for Summary Judgment.
ORDER
It is ordered that this case be remanded to the
Regional Director for Region 26 for further con-
sideration consistent with this Decision and Order,
including, if necessary, reopening the record in the
underlying representation case.
MEMBER DENNIS, further concurring.
I agree that the Board to this point has not ob-
served the congressional injunction against unit
proliferation in the health care field. I therefore
join my colleagues in promulgating the "disparity-
of-interests" standard, as refined in this case, in an
effort to give effect to the will of Congress. I
would have preferred, however, that the Board
stances, however, Member Hunter is willing to join his majority col-
leagues in remanding the case for further hearing, if the parties so desire,
on the ground that the Board here is establishing an important new legal
standard.
The dissent charges that the majority has failed to provide parties with
sufficient guidance as to the types of units which may be found appropri-
ate. We have in this decision announced the test which will apply to all
health care cases-a disparity-of-interests analysis using community-of-in-
terest elements-and have applied this test to the extent possible on the
record now before us. Based on that record, no sufficient disparity of in-
terests is demonstrated for the maintenance employee unit.
46 Member Dennis does not join in this paragraph.
954
ST. FRANCIS HOSPITAL
clearly define a limited number of appropriate
health care units, after full consideration of the po-
sitions and interests of all elements of the industry,
through its rulemaking authority. Such an ap-
proach, in my view, would have provided health
care labor relations with immediate stability and
certainty, and obviated continued litigation before
the Board and courts. I note with approval the
recent statement of the Seventh Circuit:
[W]hile the Board is entitled to some judicial
deference in interpreting its organic statute as
well as in finding facts, it would be entitled to
even more if it . . . awakened its dormant
rulemaking powers for the purpose of particu-
larizing the application . . . to the medical
field. [NLRB v. Hillview Health Care Center,
705 F.2d 1461, 1466 (1983).]
Under the "disparity-of-interests" standard we
adopt today, it is not possible to give as much
guidance to health care employers and unions as I
would like, for each case must be judged on its
own particular facts. I believe, however, that a dis-
parity of interests may be demonstrated most read-
ily in a large, diversified health care institution,
yielding four appropriate units (professionals, serv-
ice and maintenance employees, technicals, and
business office clericals). In a small, functionally in-
tegrated facility it may be that a disparity cannot
be demonstrated, and two units (professional and
nonprofessional) would therefore be appropriate.
MEMBER ZIMMERMAN, dissenting.
Less than a hundred words of legislative history
warning against the proliferation of bargaining
units in the health care industry have sparked a
legal debate that has now raged for 10 years.' In
abstract terms, this debate concerns whether a
"community-of-interests" or "disparity-of-interests"
test better serves the vague statutory limitation on
the number of appropriate bargaining units at a
health care facility. Regardless of the test used,
however, sharp differences of opionion among
Board Members and between the Board and certain
courts of appeals have actually involved the pro-
priety of only two of several commonly petitioned-
I S. Rep. 93-766, 93d Cong.. 2d Sess. 5 (1974), reprinted in "Legisla-
tive History of the Coverage of Nonprofit Hospitals Under the National
Labor Relations Act, 1974" at 12; H. Rep. 93-1051, 93d Cong., 2d Sess.
6-7 (1974), id. at 274-275:
Due consideration should be given by the Board to preventing
proliferation of bargaining units in the health care industry. In this
connection, the Committee notes with approval the recent Board de-
cisions in Four Seasons Nursing Center, 208 NLRB [403] (1974), and
Woodland Park Hospiral, 205 NLRB [8881 (1973), as well as the trend
toward broader units enunicated in Extendicare of West Virginia, 203
NLRB [1232] (1973).'
' By our reference to Extendicare, we do not necessarily approve
all of the holdings of that decision.
for units-a unit restricted to skilled maintenance
employees and a unit exclusively composed of reg-
istered nurses. Nevertheless, the continuing lack of
definitive guidelines for appropriate units has
gradually paralyzed the processing of all Board
representation cases in the industry. Consequently,
thousands of employees have been denied their
right to choose or reject collective-bargaining rep-
resentation.
It is clear that there must be an end to the
debate. The proliferation of litigation has under-
mined the stability of labor relations in health care
facilities at least as much as any potential prolifera-
tion of bargaining units. Yet, the majority today
has produced a decision far more likely to exacer-
bate this problem than to settle it.
Two years ago, the Board attempted to resolve
the unit debate in the representation stage of this
case. 2 In St. Francis I, the majority set forth an ex-
tensive analysis of legislative history and precedent;
specifically identified seven potentially, but not pre-
sumptively, appropriate health care bargaining
units; held that units beyond those seven were pre-
sumptively inappropriate, absent a showing of ex-
traordinary circumstances; and further held that
the appropriateness of any of the seven units, when
petitioned for, would be decided on a case-by-case
basis by application of the Board's traditional com-
munity-of-interests test.
The effort to produce definitive unit guidelines
in St. Francis I was stillborn. My colleagues in the
majority have successfully prevented that case and
any case relying on it from seeing the light of
day.3 As of today, the St. Francis I standard has
never received a full review in any court of ap-
peals. Whether that standard would have satisfied
the criticisms voiced by several of the courts
cannot be known with certainty, but it at least ad-
dressed those criticisms fully.
The majority has now replaced St. Francis I with
a new "disparity-of-interests" test. This new test is
the consequence of change in Board membership
and in views regarding the purposes of the Act.4
2 St. Francis Hospital, 265 NLRB 1025 (1982), hereafter identified as St.
Francis I
3 Case processing information from the Board's Office of the Execu-
tive Secretary indicates that no cases presenting an issue of the appropri-
ateness of health care units have issued since St Francis 1. As of 20 June
1984, the Board had 80 pending health care cases, the largest single cate-
gory of cases in the Board's overall case backlog.
4 As I recently stated in a dissenting opinion in Sub-Zero Freezer Co.,
271 NLRB 47 (1984), an unrelated case before the Board on a motion for
summary judgment:
The sole reason that relitigation is being permitted here is a change
in the composition of the Board from the time the representation
case was litigated to the time the test of certification occurred. Cer-
tainly the Act allows for shifts in the law when the composition of
the Board changes, and undoubtedly Congress intended for the
Continued
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although I would reaffirm St. Francis I here, I am
also guided by the wisdom of Justice Brandeis'
remark that, "It is usually more important that a
rule of law be settled, than that it be settled
right." 5 Regrettably, my colleagues' new test is
neither right nor settled. Faced with reasonable al-
ternatives of settling the issue by testing St Francis
I before the courts, by modifying St Francis I to
reduce the number of specific potentially appropri-
ate units to as few as four, by reviving the Board's
underutilized rulemaking powers, or by seeking
certiorari from the Supreme Court, the majority re-
jected them and has instead chosen an approach
which raises more questions that it answers.
Beyond hinting at the appropriateness only of one
unit for all professionals and another for all non-
professionals, the majority's disparity-of-interests
test is so bereft of necessary specifics that it guar-
antees continued debate and renewed litigation,
thereby denying the finality needed by employees,
labor, and management in the health care industry.
Under the majority's disparity-of-interests test:
[T]he appropriateness of the petitioned-for unit
is judged in terms of normal criteria, but
sharper than usual differences (or "disparities")
between the wages, hours, and working condi-
tions, etc., of the requested employees and
those in an overall professional or nonprofes-
sional unit must be established to grant the
unit. Requiring greater disparities in the usual
community-of-interest elements to accord
health care employees separate representation
must necessarily result in fewer units and will
thus reflect meaningful application of the con-
gressional injunction against unit fragmenta-
tion.6
The majority also contends that it is not adopting a
rigid application of the disparity-of-interests test
which would be the equivalent of a per se rule de-
lineating only two units as appropriate.
The faults of this test are several: (1) It really
says nothing about what evidence would prove or
disprove a disparity of interests. (2) There is less of
a basis in legislative history or in judicial precedent
for a disparity-of-interests test than there is for a
Board to respond to changing times and conditions. It is, therefore,
inevitable that a certain degree of instability in Board law will arise
as new Members enter into the decision-making process. At the same
time, however, such changes undermine the goals stated by a long
succession of Board Members of maximizing the voluntary settle-
ment of cases and minimizing the litigation of labor disputes. Those
goals call for giving due regard for both stability in the law and fi-
nality in litigation. Avoiding unnecessary instability and uncertainty
is critical to the efficient administration of the Act.
See also my concurring opinion in Bravos Oldsmobile, 254 NLRB 1056
(1981).
s Di Santo v. Pennsylvania, 273 U.S. 34, 42 (1927).
6 Footnote omitted.
community-of-interests test. (3) Most importantly,
if this new test is not in reality a two-unit standard,
then it reveals little about what parties in the
health care industry need most to know: what
number and kind of bargaining units will generally
be found appropriate.
First, an analysis calling for "sharper than usual"
disparities gives no practical guidance to petition-
ers, employers, or Board personnel designated to
process election petitions. It gives no predictability
either as to which community-of-interests elements
may be more significant than others or as to the
degree of distinction for each factor that will prove
the critical "sharper than usual" difference. It
simply is not clear at what point a difference be-
tween employee classifications in level of benefits,
working hours, training and skills, or other tradi-
tional community-of-interests factors becomes sig-
nificant. Absent clarification, parties in dispute
about the appropriateness of a unit will be con-
strained to litigate the employment details of every
employee classification in a facility.
Second, I reject the majority's rationale that a
disparity-of-interests test better satisfies the con-
gressional admonition against unit proliferation
than a community-of-interests test. On its face,
"disparity of interests" is no magical incantation
somehow more deserving of deference than "com-
munity of interests." In application, I would agree
with the Eleventh Circuit that disparity of interests
can actually be no more "than a semantic inverse
of community of interest."7 The appropriate unit
under either a community-of-interests or disparity-
of-interests test, properly applied, will be deter-
mined by reference to the same employment fac-
tors which are used both to separate and to aggre-
gate employee classifications. A far more restric-
tive application, however, unnecessarily distorts
the congressional intent of the 1974 amendments. 8
I have no doubt that fewer units will result from
my colleagues' application of their disparity-of-in-
terests standard because that is precisely the out-
come they wish to achieve. Nevertheless, I find no
mention in the legislative history of any specific
admonition to the Board to find the fewest possible
number of health care bargaining units. On the
contrary, although Senator Taft attempted to limit
the number of appropriate units to four,9 the en-
7 NLRB v. Walker County Medical Center, 722 F.2d 1535, 1539 fn. 4
(llth Cir. 1984).
8 E.g., NLRB v. HMO International, 678 F.2d 806 (9th Cir. 1982). The
court there defined a strict disparity-of-interests test that would permit
the Board to find not more than two units appropriate in any health care
facility.
9 S. 2292. See Leg. Hist. at 457-458.
956
ST. FRANCIS HOSPITAL
acted amendment contained no such restriction.1 0
What a remarkable distortion of context it is to
insist on disparity of interests, a phrase attributable
to Senator Williams, an advocate of the bill who
sought to promote union representation in health
care facilities, to mean that the Board should re-
strict the number of bargaining units to fewer than
would have been permitted by Senator Taft.
The majority claims that its test will satisfy those
courts which have criticized the Board's unit deter-
minations. As previously mentioned, the courts
have chastised the Board only for its decisions con-
cerning registered nurses and maintenance employ-
ees units. 1 Even those courts which have dealt
with registered nurse unit issues have not all reject-
ed the Board's previous approach of utilizing com-
munity-of-interests factors weighed against concern
for nonproliferation in health care units.' 2 There
has been little controversy as to units limited to all
professional,' 3 technical,' 4 clerical, or service and
maintenance employees,' 5 the same four units Sen-
ator Taft proposed.
More importantly, several circuits which have
denied enforcement of Board orders in unit cases
have not necessarily criticized the Board's use of a
community-of-interests test as much as they have
admonished the Board to define better its acknowl-
edgement and application of the congressional
warning against undue splintering of health care
units.' 6 The principal dispute is now between the
Ninth'7 and Tenth Circuits' s which have adopted
10 Additionally, a standard similar to the disparity-of-interests test was
proposed in congressional hearings, but was never adopted. William
Whelan, representing the California Hospital Association, proposed that
the "appropriate bargaining unit shall be the largest reasonable unit of
employees of an employer." Coverage of Nonprofit Hospitals Under Na-
tional Labor Relations Act, 1973: Hearings on S. 794 and S. 2292 before
the Subcommittee on Labor of the Senate Committee on Labor and
Public Welfare, 93d Cong., Ist Sess. 200.
i L NLRB v. Frederick Memorial Hospital, 691 F.2d 191 (4th Cir. 1982);
Presbyterian/St. Luke's Medical Center v. NLRB, 653 F.2d 450 (10th Cir.
1981); Mary Thompson Hospital v. NLRB, 621 F.2d 858 (7th Cir. 1980);
Allegheny General Hospital v. NLRB, 608 F.2d 965 (3d Cir. 1979); NLRB
v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979); NLRB v.
Mercy Hospital Assn., 606 F .2d 22 (2d Cir. 1979); NLRB W. West Suburban
Hospital, 570 F.2d 213 (7th Cir. 1978); St. Vincent's Hospital v. NLRB, 567
F.2d 588 (3d Cir. 1977).
12 NLRB v. Walker County Medical Center, above. In that case, the
court enforced a Board order finding, inter alia, that a unit comprised
solely of RNs was appropriate.
13 NLRB v. Community Health Services, 705 F.2d 18 (Ist Cir. 1983).
"4 Watonwan Memorial Hospital v. NLRB, 711 F.2d 848 (8th Cir. 1983).
15 Trustees of the Masonic Hall v. NLRB, 699 F.2d 626 (2d Cir. 1982).
is See, e.g., St. Elizabeth Hospital v. NLRB, 715 F.2d 1193, 1197 (7th
Cir. 1983). The unit in this case included 31 maintenance, laundry, and
linen department employees out of 100 other service employees. The
court denied enforcement of the Board's order not because the court
found the unit inappropriate, or that the community-of-interests test was
improper, but because the Board had "failed to demonstrate how it con-
sidered the congressional directive, or why it concluded the directive had
been satisfied."
1? NLRB v HMO International, above.
18 Presbyterian/St. Luke's Medical Center v. NVLRB, above.
the disparity-of-interests test, and the Second' g and
Eleventh Circuits 20 which have rejected the strict
disparity-of-interests test.2
Third, although the majority gives lip-service to
the Second Circuit's criticism of a strict disparity-
of-interests test, it stops short of demonstrating in
what ways its new "sharper than usual" disparity
test will differ from the test used by the Ninth and
Tenth Circuits. For the present, this ambiguity
leaves my colleagues' true intent largely to specula-
tion. Future cases, however, may well demonstrate
what is only suggested today-that the two tests
are indistinguishable in result.
In rejecting a per se approach, the majority re-
luctantly acknowledged that separate units of tech-
nical, and service and maintenance employees have
been upheld by the circuits. 2 2 Yet, in applying
their new standard to the facts of the instant case,
the majority did not compare the employment fac-
tors of maintenance employees only to the group
of all service and maintenance employees. Instead,
the majority stated that "the present record thus
fails to demonstrate a disparity of interests between
the maintenance employees and other nonprofes-
sionals adequate to justify separate representation."
This comports with the majority's initial descrip-
tion of its new test which states that greater than
usual differences between employees in the request-
ed unit "and those in an overall professional or
nonprofessional unit must be established to grant
the unit." Consequently, the majority's analysis
provides no basis for concluding that there are any
circumstances in which judicially accepted service
and maintenance units would be found appropriate
by the Board.
The majority's predilection for only two basic
units-professional and nonprofessional-is not re-
futed by its disclaimer of any desire to follow
either a rigid disparity-of-interests test or to adopt
a per se approach, as evidenced by application of
the new test here. If there is any meaningful differ-
ence between my colleagues' approach and that set
forth by the Ninth and Tenth Circuits, they have
done the Act and the health care industry a dis-
service by failing to identify other employee units
which may be appropriate.
The approach taken by the Board majority in St.
Francis I stands in sharp contrast to the majority's
approach here. In St. Francis I, the Board recog-
nized that some prior decisions were susceptible to
misinterpretation by the courts concerning the
19 Trustees of the Masonic Hall v. NLRB, above.
20 Watonwan Memorial Hospital v. NLRB, above.
21 NLRB v. Walker County Medical Center, above.
22 Watonwan Memorial Hospital v. NLRB, above; Trustees of the Ma.-
sonic Hall v. NLRB, above.
957
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's methods of determining appropriate health
care units.2 3 In response, the majority set forth a
straightforward analysis premised first on the iden-
tification of seven potentially appropriate units.
These were neither presumptively nor per se ap-
propriate, but provided the parties with some spe-
cific guidance as to the usual scope and number of
health care units. Such guidance is vital if the
Board is to effectuate the employees' right to exer-
cise their fullest freedom of choice in selecting or
rejecting a collective-bargaining representative.
As a second step, St. Francis I required a show-
ing that employees in one of the potentially appro-
priate units also possess a "distinct community of
interest, separate and apart from other hospital em-
ployees." 24 Under this analysis, "the long-estab-
lished community-of-interest criteria are balanced
against the legislative concern about over-prolifera-
tion of health care bargaining units. " 25 For the rea-
sons more fully expressed in the St. Francis I ma-
jority decision, this is the better approach to ac-
commodate both the representational rights of
health care employees and the congressional con-
cern about unit multiplicity. As I believe that St.
Francis I adequately addressed the criticism cited
by the various courts of appeals, I would have at
least put this test to judicial review before discard-
ing it. Regrettably, my colleagues have rejected
this course of action.
Equally regrettable, they have chosen an obfus-
catory legal approach which is far worse than sev-
eral reasonable alternatives to St. Francis I. In this
decision they could have set forth a reasoned rejec-
tion of St. Francis I on the basis of the overriding
need to find a solution to the unit issue most likely
to be accepted by reviewing courts. They could
have adopted a disparity-of-interests test which
would have been clear and not wholly at odds
with the Board's traditional community-of-interests
criteria which were nowhere rejected by the Con-
gress in 1974. They could have given reasonably
clear guidance to the parties and to agency person-
nel reducing the number of and specifying the
composition of all potentially appropriate units in
health care facilities. Had they done so today, I
could well have joined them despite my prior ap-
proval of St. Francis I, because of the overwhelm-
ing need for the Board to take the initiative in re-
solving this 10-year-long dispute.
It is clear now more than ever that the parties
deserve a final resolution of the standard which
will be used to prevent undue proliferation of
health care bargaining units. By today's decision,
23 265 NLRB at 1026.
24 265 NLRB at 1031.
25 265 NLRB at 1026.
however, the majority has demonstrated the futility
of this Board's attempts to resolve this issue
through traditional case-by-case adjudication. Rule-
making could provide an acceptable and feasible
means to end the 10-year controversy. It would
give the Board a chance to evaluate the industry's
experiences under the law and to end the uncer-
tainty over how'to implement the congressional in-
junction against unit proliferation.2 6 The Board
could formulate comprehensive and specific rules
tailored to the needs of different types and sizes of
facilities. This would give parties predictability,
guidance, and assurance that the rules would be
settled unless or until they were modified. Finally,
rules based on a broad range of information and
comments from interested parties would have
greater inherent credibility and should therefore
lead to more judicial deference to Board decisions.
The Board could also seek certiorari to resolve
the nonproliferation dispute. The Board has not pe-
titioned for certiorari since Mercy Hospital, when
certiorari was denied in 1980.27 That request for
certiorari preceded the sharp division of opinion in
the courts of appeals about community of interests
versus disparity of interests as the health care unit
standard. Given the split in the circuits, the health
care unit controversy is now ripe for review.
In summary, the disparity-of-interests test an-
nounced today fails to persuade me to abandon the
approach taken by the Board in St. Francis I, par-
ticularly in light of the majority's rejection of any
of the constructive alternatives I have discussed.
The ambiguity of this new test is a setback for the
Board's basic statutory mandate to provide stabili-
ty, certainty, and promptness in its rulings. Those
goals are critical to effectuating the rights of em-
ployees to fully exercise their freedom of choice in
selecting a collective-bargaining representative.
The only beneficiary of the new rule is likely to be
the legal profession due to profit from increased
litigation to define the rule's true meaning. If future
cases do demonstrate that appropriate health care
units will be reduced in the Board's view to only
two, professional and nonprofessional, this result
would represent a gross and unnecessary overreac-
tion to criticism from courts of appeals, which are
not universally opposed to the Board's balancing of
community of interests against health care industry
peculiarities. Moreover, the new test may confuse
those courts which have already rejected a dispari-
ty-of-interests test.
Sb For example, the Board has no information showing any correlation
hetween the number of bargaining units in health care facilities and the
incidence of disruptive work stoppages in such facilities.
27 NI RB v. Mfercy Hospital .4sn., 445 U.S. 971 (1980).
958
ST. FRANCIS HOSPITAL 959
For all of these reasons, I would adhere to the
two-step analysis set forth in St. Francis I and find
the maintenance unit here appropriate.