St. Mary's Duluth Clinic

National Labor Relations Board - Board Decisions

Dec 15, 2000

332 N.L.R.B. 1419 (N.L.R.B. 2000)

ST. MARY’S DULUTH CLINIC 1419
St. Mary’s Duluth Clinic Health System and United
Steelworkers of America, AFL–CIO, CLC, Peti-
tioner. Case 18–RC–16399
December 15, 2000
DECISION ON REVIEW AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
FOX, LIEBMAN, AND HURTGEN
The issue presented in this case is whether, in an acute-
care hospital where there is a nonconforming bargaining
unit consisting of some, but not all, of the employees
who would otherwise constitute an appropriate unit un-
der the Board’s Health Care Rule,1 the Board will proc-
ess a petition by a different labor organization for a sepa-
rate residual unit consisting of the remaining nonrepre-
sented employees. At the time it promulgated its 1989
rule regarding collective-bargaining units in the health
care industry, the Board anticipated that this and related
questions would arise with regard to the representation of
units that are residual to nonconforming units. However,
because the issues involved had not been extensively
addressed during the rulemaking proceeding, the Board
specifically deferred their resolution to the adjudication
of particular cases presenting those issues. The Board
had its first opportunity to do so in St. John’s Hospital,
307 NLRB 767 (1992), in which a union representing an
existing nonconforming unit of plumbers and refrigera-
tion employees at an acute-care hospital filed a petition
seeking to represent a separate unit consisting of some,
but not all, of the remaining skilled maintenance workers
at the facility. The Board first held that any election to
determine a representative for unrepresented skilled
maintenance workers would have to include all the re-
maining skilled maintenance workers residual to the ex-
isting unit or units. The Board then went on to apply its
long-settled rule that an incumbent union2 wishing to
represent employees residual to those in its existing unit
could only do so by adding them to the existing unit,
usually by way of a self-determination election, and
could not seek to represent them as a separate unit. The
Board did not, however, address the question presented
here, which is whether we will process a petition for a
separate residual unit filed by a union other than the un-
ion representing the unit to which it is residual. As fully
discussed below, we conclude that such a petition may be
processed, provided that the petitioned-for unit is an ap-
propriate residual unit.

1 29 CFR § 103.30; 284 NLRB 1580–1597 (1987).
2 Although the term “incumbent union” usually refers to a union that
already represents the petitioned-for employees, in the health care
industry where a union has petitioned to represent a unit of unrepre-
sented residual employees, the Board has used the term “incumbent
union” to refer to the union that currently represents employees in a
nonconforming unit to which the petitioned-for employees are residual.
Background
On February 19, 1999, the Regional Director for Re-
gion 18 issued a Decision and Direction of Election, in
which he found appropriate the petitioned-for residual
unit of all unrepresented technical employees at the Em-
ployer’s acute-care health facility. In accordance with
Section 102.67 of the Board’s Rules and Regulations, the
Employer and the Minnesota Licensed Practical Nurses
Association (MLPNA), the incumbent union representing
a unit of licensed practical nurses (LPNs) at the Em-
ployer’s facility, filed timely requests for review of the
Regional Director’s decision. By Order dated March 18,
1999, the Board granted the requests for review. The
Employer subsequently filed a brief on review. Having
carefully considered the entire record in this proceeding,
including the Employer’s brief on review, we conclude
that the petitioned-for residual unit is appropriate.
Facts
The Employer is engaged in the provision of medical
and health services at various facilities in Wisconsin and
Minnesota, one of which is St. Mary’s Medical Center
(St. Mary’s), an acute-care hospital in Duluth, Minne-
sota. In January 1997, St. Mary’s Medical Center
merged with the Duluth Clinic, thereby creating a new
corporate entity. For a substantial period of time prior to
the merger, and continuing to the time of this proceeding,
St. Mary’s has maintained bargaining relationships with
a number of different labor organizations. The MLPNA,
for example, has represented a unit of 175 LPNs at St.
Mary’s since 1955, with the most recent collective-
bargaining agreement covering the period from October
1, 1996, to September 30, 1999. As the MLPNA unit
excludes 230 additional technical employees at St.
Mary’s, it is a “non-conforming” unit (i.e., a bargaining
unit that does not conform to one of the specifically
enumerated units) under the Board’s Health Care Rule
applicable to acute-care facilities.3 See 29 CFR §
103.30.4
3 Additionally, several other labor organizations have long repre-
sented units of employees at St. Mary’s that do not conform to those
units delineated in the Health Care Rule.
4 The Rule provides:
Except in extraordinary circumstances and in circumstances
in which there are existing non-conforming units, the fol-
lowing shall be appropriate units, and the only appropriate
units, for petitions filed pursuant to section 9(c)(1)(A)(i) or
9(c)(1)(B) . . . except that, if sought by labor organizations,
various combinations of units may also be appropriate:
(1) All registered nurses.
(2) All physicians.
332 NLRB No. 154
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
On November 17, 1998, the Petitioner filed a petition
seeking to represent a residual unit composed of the 230
unrepresented technical employees at St. Mary’s, includ-
ing 9 unrepresented LPNs who had been employed at the
Duluth Clinic prior to the Clinic’s merger with St.
Mary’s.5 Although the MLPNA did not formally appear
or intervene at the hearing, it did subsequently file a for-
mal motion to intervene after the close of the hearing.6
That motion to intervene was denied by the Regional
Director in his Decision and Direction of Election, on the
ground that the showing of interest submitted by the
MLPNA did not predate the close of the hearing, and
thus was untimely.
The Regional Director concluded that under the facts
of this case, the petitioned-for residual unit is appropri-
ate, noting inter alia, that the Petitioner is seeking all—
rather than a portion—of the unrepresented technical
employees. Accordingly, the Regional Director directed
an election among the residual technical employees.
The Employer took the position that the petitioned-for
unit was inappropriate, and that the only appropriate unit
would be an all-technical unit that included both the al-
ready represented LPNs and remaining technical em-
ployees. In so arguing, the Employer relied on both the
Health Care Rule and the Board’s pre-Rule decision in
Levine Hospital of Hayward, Inc., 219 NLRB 327

(3) All professionals except for registered
nurses and physicians.
(4) All technical employees.
(5) All skilled maintenance employees.
(6) All business office clerical employees.
(7) All guards.
(8) All non-professional employees except
for technical employees, skilled maintenance
employees, business office clerical employees,
and guards.
29 C.F.R. § 103.30(a).
5 The nine unrepresented LPNs work in the “walk-in” center at the
hospital—an area within the hospital devoted to the treatment of non-
emergency patients who come to the center seeking medical care with-
out an appointment. Although the walk-in center is located within the
physical boundaries of the hospital, the center historically (prior to the
merger with St. Mary’s) was a part of the Duluth Clinic.
6 The MLPNA filed its motion to intervene after the Regional Direc-
tor advised the union—in response to the MLPNA’s letter indicating a
desire to participate as an intervenor in any election that might be di-
rected—that it would be required to comply with the Board’s rules
governing intervention.
The MLPNA claims, however, that it previously had been accorded
intervenor status, as evidenced by its designation as an intervenor on
the original and amended order consolidating cases and notice of repre-
sentation hearing. In this regard, the Regional Office administratively
advised the Board that the MLPNA had been inadvertently included as
an intervenor in the captions of these documents, and that it had never
been granted intervenor status.
(1975).7 Although it does not advance any arguments on
the appropriateness of the unit, the MLPNA submits that
the Regional Director erred in failing to accord it inter-
venor status and in failing to include it on the election
ballot.
Analysis
We conclude, based upon the express language of the
Rule, as well as Board precedent and policy, that a non-
incumbent union may represent a separate residual unit
of employees in the healthcare industry. Further, in ac-
cordance with the Regional Director, we find that, con-
sistent with the Board’s decision in St. John’s, the peti-
tioned-for residual unit of all unrepresented technical
employees at St. Mary’s is an appropriate residual unit.
We begin with the language of the Rule itself. Section
103.30(c)8 provides that, where there are existing, non-
conforming units, additional units will be found appro-
priate only if they conform “insofar as practicable” to
one of the enumerated units. A conclusion that the Rule
was intended to permit only those units specifically enu-
merated in the Rule—the interpretation urged by the
Employer here—would render the section superfluous.
Rather, the phrase suggests that new units should con-
form as closely as possible to one of the eight units,
given the preexistence of nonconforming units. This
interpretation is consistent with other post-Rule decisions
in which the Board has considered the meaning and ap-
plicability of the Rule. In Kaiser Foundation Hospitals,
312 NLRB 933 (1993), for example, the Board con-
cluded that Section 103.30(c) of the Rule does not apply
to petitions that seek to carve out or sever a group of em-
ployees from an existing nonconforming unit, even when
the unit sought conforms to one of the Rule’s enumerated
units. In determining that the Rule was intended to apply
7 In Levine Hospital, the Board concluded that a nonincumbent un-
ion could not appropriately represent a residual unit of employees at an
acute-care hospital. An incumbent union represented a broad unit of
service and maintenance employees at an acute-care hospital; the peti-
tioning union sought to represent a residual unit of seven medical re-
cords clerks and transcribers. The Board dismissed the petition, finding
that the creation of a separate unit would lead to an undue proliferation
of bargaining units, contrary to congressional admonition. The Board
noted that it was not relegating the clerks and transcribers to “a state of
perpetual unrepresentation,” since the Board would entertain a timely
petition to represent all of the service and maintenance employees
(including the clerks and transcribers), or a petition by the incumbent
union seeking to add the clerks and transcribers to the existing service
and maintenance unit via a self-determination election.
8 Sec. 103.30(c) provides:
Where there are existing non-conforming units in acute care
hospitals, and a petition for additional units is filed pursuant
to sec. 9(c)(1)(A)(i) or 9(c)(1)(B), the Board shall find ap-
propriate only units which comport, insofar as practicable,
with the appropriate unit set forth in paragraph (a) of this
section.
ST. MARY’S DULUTH CLINIC 1421
only to petitions for a “new unit of previously unrepre-
sented employees,” the Board emphasized the literal lan-
guage of the Rule and its accompanying comments, as
well as the Board’s longstanding policy of according
deference to collective-bargaining history and the promo-
tion of industrial and labor stability. Kaiser, 312 NLRB
at 934–935. Similarly, in Crittenton Hospital, 328
NLRB 879 (1999), the Board concluded that the Rule
permitted a nonincumbent union to petition for a histori-
cal nonconforming unit, and did not require the addition
of historically excluded employees so as to render the
unit a “conforming” one pursuant to the Rule. Specifi-
cally, the Board indicated that the “perpetuation of a
well-established, stable historical nonconforming unit in
an RC election is not inimical to the concerns underlying
the Rule,”9 supra at 879. In both Kaiser and Crittenton,
the Board concluded that it was not the intent of the Rule
to require the abandonment of, and replacement of, exist-
ing historical units with units that specifically conform to
those set forth in the Rule.
Although the Board ultimately concluded that Section
103.30(c) of the Rule was not applicable in the above
decisions, the cases nevertheless are instructive for their
discussion of the Board principles and policies that were
deemed to influence and provide context for the proper
interpretation of the Rule. Just as the Board in Kaiser
and Crittenton emphasized the Board’s longstanding
policy of according deference to collective-bargaining
history and promoting labor stability, so too do we con-
sider the significance of these policies in interpreting the
phrase “insofar as practicable.” In our view, to require
an incumbent union with a long, harmonious bargaining
relationship to represent a new, additional group of em-
ployees—who may outnumber the employees in its exist-
ing unit, and who may have competing interests from the
employees in the existing unit—or to require a petition-
ing union to raid the incumbent’s existing unit, would be
antithetical to these important policies. In other words,
we conclude that the phrase “insofar as practicable,”
viewed in light of the policies discussed above, should
not be interpreted to preclude a nonincumbent union
from representing in a separate residual unit all unrepre-
sented employees residual to those in the existing non-
conforming unit. Although we are not unmindful of the
congressional admonition against the undue proliferation
of bargaining units in the healthcare industry,10 we con-

9 In so concluding, the Board specifically indicated that it was
“[leaving] to another day the question whether a nonincumbent union
may represent a residual unit of employees in the healthcare industry.”
Supra at 879 fn. 9.
10 In its decision upholding the Board’s Rule, the Supreme Court
stated that “the admonition [against undue proliferation] in the Com-
clude that this concern must be weighed against the sig-
nificant, long-established policy of according deference
to existing collective-bargaining relationships.
In any event, we do not believe that our decision today
will result in the undue proliferation of bargaining units.
In our view, the concerns of unit proliferation articulated
in the Board’s decision in Levine have been alleviated to
a large degree as a result of the promulgation of the
Health Care Rule, in conjunction with Board precedent
requiring that any residual unit include all unrepresented
employees in the particular classification at issue. Given
this precedent, together with the fact that the Board enu-
merated only eight appropriate units in the Rule, the po-
tential number of residual units that could exist at any
particular facility is limited. Moreover, in our experi-
ence, the situation in which multiple unions petition for
various units of unrepresented employees at healthcare
institutions has rarely presented itself, and we likewise
anticipate few such cases in the future.
Our decision that a nonincumbent union may represent
a residual unit of employees under the Health Care Rule
additionally finds support in the principles underlying the
Act itself by preserving the Section 7 rights of the unrep-
resented employees to pursue bargaining representation.
If, as in the instant case, the incumbent union does not
attempt to add the unrepresented employees to its exist-
ing nonconforming unit through a self-determination
election, a dismissal of the petition for a residual unit
would necessarily force those employees to remain un-
represented for the duration of the incumbent-employer
contract. Depending upon the length of the existing col-
lective-bargaining agreement, the residual employees
could be denied the opportunity to choose a bargaining
representative for a period of months or even years.
Additionally, the conclusion that a nonincumbent un-
ion may represent an appropriate unit of residual em-
ployees has the desirable consequence of eliminating the
tension created by the Board’s decisions in Levine and
other cases.11 A determination of the propriety of a non-

mittee Reports is best understood as a form of notice to the Board that
if it did not give appropriate consideration to the problem of prolifera-
tion in this industry, Congress might respond with a legislative rem-
edy.” American Hospital Assn. v. NLRB, 499 U.S. 601, 616–617
(1991). The Court additionally emphasized that the congressional
statement concerning the avoidance of proliferation of bargaining units
obviously did not have the force of law. Id.
11 See Michael Reese Hospital, 242 NLRB 322 (1979). In Michael
Reese, the Board distinguished Levine, and concluded that a petitioned-
for unit of 10 chauffeur-drivers at an acute-care hospital was appropri-
ate because the drivers had a separate community of interest from the
employees in the existing 1000-employee service and maintenance unit,
and because the incumbent union representing the service and mainte-
nance employees had not expressed an interest in participating in an
election to represent the drivers. More specifically, although the in-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1422
incumbent union’s petition for a residual unit that is not
contingent upon the incumbent union’s interest or lack of
interest in representing the employees obviates the need
for inquiry into the incumbent union’s interest in repre-
senting the residual employees.
Furthermore, our determination that a nonincumbent
union’s petition for a residual unit may be appropriate
pursuant to the Health Care Rule does not suggest that an
incumbent union is foreclosed from adding the residual
employees to its existing unit through a self-
determination election or that a petitioning union is fore-
closed from filing a timely petition for an overall unit.
The Regional Director denied MLPNA’s motion to in-
tervene, and MLPNA has requested review of that denial.
Normally, as an administrative matter, we require a un-
ion to request permission to intervene in a representation
proceeding and to demonstrate a showing of interest in
the petitioned-for unit. We allow intervening unions
different levels of participation depending on the type
and extent of interest that they have demonstrated. See
generally NLRB Casehandling Manual (Part Two), Rep-
resentation Proceedings Sections 11023.2–11023.5. A
union such as the MLPNA, which represents employees
of the employer outside the petitioned-for unit, is nor-
mally allowed to intervene only to protect its interests in
the unit it represents. It is not allowed a place on the
ballot, unless it demonstrates a showing of interest in the
petitioned-for unit. Id. at Section 11023.5. In light of
our decision to permit nonincumbent unions to petition
for residual units, we have decided to adopt a limited
exception to these rules. In cases such as this one where
a nonincumbent union petitions for a residual unit, the
incumbent union representing the existing nonconform-
ing unit will be entitled, as a matter of course, to a place
on the election ballot, without having to formally request
intervention or demonstrate a showing of interest in the
petitioned-for unit, if it so desires. The incumbent un-
ion’s participation shall be limited to a place on the bal-
lot. If the incumbent union chooses to be included on the
ballot, the employees in the unit will have the opportu-
nity to choose (1) to be represented by the petitioning
union in a separate unit, (2) to be represented by the in-

cumbent union had previously sought to include the drivers in its unit
during collective-bargaining negotiations and had subsequently filed a
unit clarification petition seeking to add the drivers, the Board found
that the incumbent union had never sought to include the drivers in its
existing unit via a self-determination election. The Board further indi-
cated that as the incumbent union had not intervened in the election
proceedings, the Board would have no reason to believe that the union
would then file an election petition. Accordingly, the Board concluded
that as a dismissal of the petitioner’s petition would relegate the drivers
to a perpetual lack of representation, the petitioned-for residual unit
was appropriate.
cumbent union as part of its unit, or (3) not to be repre-
sented. In our view, this limited exception to the Board’s
intervention rules strikes a proper balance between the
policies of stability of existing collective-bargaining rela-
tionships and avoidance of undue proliferation of bar-
gaining units in the healthcare industry, by encouraging,
but not requiring, the incumbent union to seek to add the
residual employees to its existing unit.
For all the foregoing reasons, we conclude that a peti-
tion by a nonincumbent union for a residual unit of em-
ployees in the healthcare industry may be appropriate
pursuant to the Health Care Rule.12 We further conclude
that, with respect to the instant case, the Regional Direc-
tor properly found appropriate the petitioned-for residual
unit of all unrepresented technical employees at St.
Mary’s since it includes all of the unrepresented techni-
cal employees who are residual to the MLPNA unit.
Contrary to the Regional Director, however, and in ac-
cordance with our discussion above, we conclude that the
MLPNA is entitled to participate as an intervenor in the
election if it so desires. Accordingly, we will remand
this case to the Regional Director for further action con-
sistent with this decision.
ORDER
This case is remanded to the Regional Director for fur-
ther action consistent with this Decision.
MEMBER HURTGEN, dissenting.
I conclude that the unit found appropriate by my col-
leagues is contrary to Section 103.30(c) of the Board’s
Rules, inconsistent with Board precedent, and at odds
with the congressional admonition against an “undue
proliferation of units” in the health care industry. Ac-
cordingly, I dissent.
The MLPNA represents a unit of 175 LPNs. These
employees are technical employees. The Petitioner seeks
to represent all other technical employees. There are 230
such employees, including 7 LPNs. Under the Health
Care Rules (which cover the acute-care facility involved
herein) the appropriate unit is all technical employees.
Thus, the MLPNA unit is a nonconfirming unit, and the
Petitioner seeks to perpetuate the nonconformance.
Section 103.30(c) of the Rules provides:
(c) Where there are existing non-conforming units in
acute care hospitals, and a petition for additional units
is filed pursuant to section 9(c)(1)(A)(i) or 9(c)(1)(B),
the Board shall find appropriate only units which com-
port, insofar as practicable, with the appropriate unit set
forth in [the Rules].
12 We accordingly overrule the Board’s decision in Levine Hospital.
ST. MARY’S DULUTH CLINIC 1423
Thus, the unit should include all technical employees if
it is practicable to do so. Phrased differently, the unit
sought herein (some technical employees) is to be appro-
priate only if it is shown that it is impracticable to place
all of the technical employees in one unit. There is no
such showing here. Indeed, my colleagues effectively
concede that an all-technical unit would be practicable.
That is, one of the choices on the ballot is representation
by MLPNA in an all-technical unit. Clearly, my col-
leagues would not have permitted that choice if they
thought that a unit of all technical employees was im-
practicable.
The only attempt to show that such a unit would be
impracticable is the assertion that such a unit would re-
quire Petitioner to “raid” the MLPNA unit or would re-
quire MLPNA to extend its unit. As to the former asser-
tion, the fact that two unions may compete for the same
employees is hardly a showing that the unit itself is im-
practicable for representation. As to the latter, there is no
requirement that MLPNA add employees that it does not
seek.
The unit granted by my colleagues is also contrary to
Board precedent. My colleagues effectively concede this
point, for they find it necessary to overrule Levine Hospi-
tal, 219 NLRB 327 (1975).
Michael Reese Hospital, 242 NLRB 322 is not to the
contrary. That pre-Rule case involved a unit of chauf-
feur-drivers who spent most of their time away from the
hospital. In addition, no union other than the petitioner
sought to represent them. Those facts are not present in
the instant case.
My colleagues also effectively ignore the congres-
sional admonition to refrain from an “undue prolifera-
tion” of units in the health-care industry. They do so by
placing technical employees in separate units. Worse,
they even place a specific job (LPNs) in two separate
units.
My colleagues concede that the incumbent union
would not be permitted to have separate units. Clearly, it
is even worse, from the standpoint of undue proliferation,
to have two unions representing separate units. The dan-
ger is that each union would seek to outdo the other, with
attendant instability in a health care setting.
Finally, my position does not impermissibly intrude on
Section 7 rights. Employees do not have a Section 7
right to seek recognition in any unit they wish. They
have a Section 7 right to seek recognition in an appropri-
ate unit. As set forth above, the unit sought herein is
clearly inappropriate.