St. Vincent Hospital And Health Center

National Labor Relations Board - Board Decisions

Aug 19, 1987

285 N.L.R.B. 365 (N.L.R.B. 1987)

ST. VINCENT HOSPITAL
St. Vincent Hospital and Health Center and Mon-
tana Nurses ' Association , Petitioner . Case 19-
RC-11496
19 August 1987
DECISION ON REVIEW AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN, BABSON, STEPHENS, AND
CRACRAFT
On 10 March 19871 the Regional Director for
Region 19 issued a Decision and Direction of Elec-
tion in which he found that the petitioned-for unit
of all registered nurses (RNs) is not an appropriate
unit for bargaining, and that the smallest appropri-
ate unit is one composed of all professional em-
ployees.2 In so ruling, the Regional Director ap-
plied the "disparity-of-interests" standard enunci-
ated in St. Francis Hospital, 271 NLRB 948 (1984)
(St. Francis II), and applied in a number of cases
that followed.3
On 20 March, however, the United States Court
of Appeals for the District of Columbia Circuit
held that the Board had erroneously concluded in
St. Francis II that the "disparity-of-interests" stand-
ard was mandated by the legislative history of the
1974 health care amendments4 to the National
Labor Relations Act, and remanded the case to the
Board for reconsideration. Electrical Workers
IBEW Local 474 v. NLRB, 814 F.2d 697 (D.C. Cir.
1987). On 24 March the Petitioner here filed a
timely request for review in the instant proceeding
in which it contended, inter alia, that the Regional
Director's decision should be reconsidered in light
of Electrical Workers IBEW Local 474. The Peti-
tioner also urged that, even under St. Francis II,
the Regional Director had erred in not finding a
unit limited to all the Employer's RNs to be an ap-
propriate unit for bargaining. The Employer filed
an opposition to the request for review, arguing
that Electrical Workers IBEW Local 474 was
wrongly decided; that the Ninth Circuit (in which
this case arises) has held that a "disparity-of-inter-
ests" analysis is mandated by the legislative history
of the 1974 amendments; 5 and that, under either
i All dates are in 1987
2 The precise unit found appropriate was
All professional employees employed by St Vincent Hospital and
Health Center at its Billings , Montana facility, but excluding all
other employees, guards and supervisors as defined in the Act
9 E g, North Arundel Hospital Assn, 279 NLRB 311 (Apr 16, 1986),
Keokuk Area Hospital, 278 NLRB 242 (Jan 27, 1986)
4 Pub L 93-360, 88 Stat 395 (July 26, 1974)
5 NLRB v HMO International/California Medical Group, 678 F 2d 806,
808, 810 (9th Cir 1982), NLRB v St Francis Hospital, 601 F 2d 404, 419
(9th Cir 1979)
365
the "disparity-of-interests" analysis or the Board's
traditional "community-of-interests" standard, the
smallest appropriate unit here would be an all-pro-
fessional unit.
In view of the D.C. Circuit's remand in Electri-
cal Workers IBEW Local 474, the Board, by unpub-
lished Order dated 8 April, granted the request of
the Petitioner herein for review with respect to the
Regional Director's unit determination and, sua
sponte, scheduled oral argument. Pursuant to the
Board's procedures, the election was conducted as
scheduled on 9 April in the unit found appropriate
by the Regional Director, and the ballots were im-
pounded.
On 4 May the Board held oral argument on the
question of what test should be used in making bar-
gaining unit determinations in the health care in-
dustry, and in particular on the significance of the
legislative history of the 1974 amendments to
health care unit determinations. Both parties filed
briefs and argued orally, as did several amici
curiae.
After a careful consideration of all the briefs and
arguments of counsel, and on reflection over the
past 13 years' experience in making health care unit
determinations, the Board has decided to engage in
rulemaking for the reasons fully set forth in our
notice of proposed rulemaking published in the
Federal Register, 52 Fed.Reg. 25142 (1987) (to be
codified at 29 C.F.R. § 103) (proposed July 2,
1987).6 As explained in the notice of proposed rule-
making, the Board made that decision for several
reasons. First, rulemaking will reduce the need for
lengthy and costly case-by-case adjudication of bar-
gaining unit issues, and thus will provide more pre-
dictability for employers and labor organizations
while easing the drain on the resources of the
Board and all parties.' Second, it will enable the
Board to profit from empirical evidence (usually
not presented in adjudicatory proceedings) as to
the types of unit configurations that would or
would not lead to unwarranted unit proliferation.
Finally, the multiplicity of differing views among
5 Because, inter alia, of the myriad fact situations and policy consider-
ations presented for the determination of appropriate bargaining units,
Chairman Dotson does not consider rulemaking an appropriate or effec-
tive exercise of the Board's authority in this class of decisions
Member Johansen concurs with the result in this case, but agrees with
the Chairman that rulemaking is inappropriate in this class of decisions
' It has been our experience that the functions and duties of specific
groups of health care employees (e g , RNs, pharmacists, medical techni-
cians) do not vary a great deal from one facility to another Nevertheless,
representation hearings often last several days and generate records hun-
dreds, and sometimes thousands, of pages long, as witnesses testify in
detail as to contacts among employees, integration of employees' job
functions, and the like The process of adjudicating the appropriate unit
in each case thus is time-consuming and expensive, and in practice yields
little information about individual hospitals that could not easily have
been predicted from previous hospital cases
285 NLRB No. 64
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the various courts of appeals engenders little confi-
dence that case-by-case adjudications ever will
produce a single test or method of analysis that
will withstand judicial scrutiny."
The Board's proposed rule contains a list of spe-
cific health care bargaining units that would be
found appropriate in all but the most unusual cir-
cumstances if that rule were implemented. The
notice of proposed rulemaking emphasizes, howev-
er, that while the list of proposed units is based on
the Board's cumulative experience, the Board main-
tains an open mind about which and how many
units it will ultimately settle upon, following its ex-
amination of the empirical evidence presented at
several scheduled hearings.
In the meantime, petitions will continue to be
filed by labor organizations seeking to represent
health care employees, and the Board is faced with
deciding how to deal with those petitions while the
rulemaking proceeding is pending- Three choices
appear to be available: to take no action on such
petitions until the final rule is issued; to make de-
terminations under some new interim standard; or
to continue to decide cases under extant Board
law.
We reject the first option-deferring action
pending issuance of the final rule-because it
would leave the parties in limbo for an undeter-
mined period of time-at least several months. In
8 The Ninth and Tenth Circuits have held that the legislative history
requires a "disparity-of-interests" analysis See, e.g., NLRB Y. HMO Inter-
national, supra; NLRB v. St. Francis Hospital, supra; Southwest Community
Health Services Y. NLRB, 726 F 2d 611, 613 (10th Cir 1984),
Presbyterian/St Luke's Medical Center v. NLRB, 653 F 2d 450, 457 (10th
Cir. 1981). Moreover, those circuits interpret the "disparity-of-interests"
approach as sanctioning narrow units only if the differences in interests
between the employees in the unit sought and other employees are so
great as' virtually to preclude organizing on a broader scale. See, e.g,
HMO International, 678 F.2d at 808, 812 fn 17; Southwest Community
Health Services, 726 F 2d at 613. Several other circuits, however, have re-
jected this rigid "disparity-of-interests" approach, and have held instead
that the Board may use a traditional "community-of-interests" analysis,
provided it weighs the public interest in avoiding unit proliferation
against the employees' organizational rights. Watonwan Memorial Hospital
v. NLRB, 711 F 2d 848, 850 (8th Cir 1983), Trustees of the Masonic Hall
v. NLRB, 699 F.2d 626, 632, 641 (2d Cir 1983), NLRB v. Walker County
Medical Center, 722 F.2d 1535, 1538-1539 (11th Cir 1984) Other courts,
while not expressly rejecting the rigid "disparity-of-interests" approach,
have adopted the view that the Board must take the congressional admo-
nition against unit proliferation into account in making health care unit
determinations. NLRB v. Frederick Memorial Hospital, 691 F 2d 191 (4th
Cir 1982), NLRB v. Hillview Health Care Center, 705 F 2d 1461 (7th Cir.
1983); Mary Thompson Hospital v. NLRB, 621 F 2d 858 (7th Cir. 1980);
Bay Medical Center v. NLRB, 588 F 2d 1174 (6th Cir 1978), Allegheny
General Hospital v. NLRB, 608 F 2d 965 (3d Cir. 1979); NLRB v West
Suburban Hospital, 570 F 2d 213 (7th Cir 1978), St. Vincent's Hospital v.
NLRB, 567 F 2d 588 (3d Cir 1977) Most recently, in Electrical Workers
IBEW Local 474, the D.C Circuit not only rejected the view that the
amendments mandate the use of a "disparity-of-interests" standard, 814
F.2d at 715, but held that Congress' failure to amend Sec 9 of the Act
(dealing with unit determinations) indicates that Congress implicitly ap-
proved the continued use of the "community-of-interests" approach in
health care institutions Id at 711. (The Court did indicate that the Board
might, in its discretion, switch to a "disparity-of-interests" standard if it
explained its action adequately) Id. at 711-712 and fn 65
our view, such a lengthy period of inaction certain-
ly would not "assure to employees the fullest free-
dom in exercising the rights guaranteed by the
Act,"9 and in fact would deprive them of those
rights until the final rule was issued. In addition,
since we have determined that the final rule will be
prospective in application only, inaction pending
the outcome of the rulemaking proceeding would
merely result in delay, and in any event would not
result in the final rule being applied to pending
cases such as this.
We also choose not to process cases under any
new interim standard, in part because any such
standard necessarily would be of brief duration,
ending shortly after the final rule was promulgated.
Moreover, the oral argument persuades us that it
would be advisable to obtain empirical evidence
before devising a new standard. Lastly, an interim
standard would add unnecessarily to the adjust-
ments petitioners and employers must make as the
Board moves from case-by-case adjudication to
rulemaking.
Therefore, we have decided to continue to proc-
ess cases under existing law until the final rule has
been issued. That is, we will continue to make bar-
gaining unit determinations in the health care in-
dustry using the "disparity-of-interests" analysis an-
nounced in St. Francis II, and which we have ap-
plied in subsequent cases. 1 ° Under that standard,
[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. 11
In other words, "more is required to justify a sepa-
rate unit in a health care institution than in a tradi-
tional industrial or commercial facility."12
We recognize, of course, that our decision to
follow existing law may place us in conflict to
some extent with the court 's decision in Electrical
Workers IBEW Local 474. There, the D .C. Circuit
found that the Board in St. Francis II committed
legal error by interpreting the 1974 amendments as
mandating the use of the "disparity-of-interests"
standard , 13 In the court's view, because Congress
did not amend Section 9 in 1974 , the Board erred
in relying on the legislative history of the 1974
9 Sec 9(b) of the Act
to E g., North Arundel Hospital Assn., and Keokuk Area Hospital, supra.
II St. Francis II, 271 NLRB at 953 (footnote omitted)
12 Ibid
13 Electrical Workers IBEW Local 474, 814 F 2d at 699, 708, 715
ST. VINCENT HOSPITAL
amendments, even though it 'contains several ex-
pressions of Congress' concern over health care
unit proliferation. 14 The court held that
Although legislative history may `give meaning
to ambiguous statutory provisions, courts have
no authority to enforce alleged principles
gleaned solely from legislative history that has
no statutory reference point.15
Thus, according to the court, because "Congress
did not modify section 9 in any way when it
amended the Act in 1974," 16 the amendments did
not change unit certification standards.17 Accord-
ingly, there was no statutory language to be ex-
plained by resort to the legislative history, and
therefore the Board wrongly relied on the legisla-
tive history in concluding that the amendments-
mandate use of the "disparity-of-interests" stand-
ard.
With due respect to the court of appeals, we
view the standard adopted by the Board in St.
Francis II somewhat differently. Nowhere in its de-
cision does the Board state that the "disparity-of-
interests" standard is mandated. Rather, the deci-
sion states the Board's view that "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."18 The Board did not say, or
intend to say, that anything in the 1974 amend-
ments or their legislative history mandates the
adoption of a "disparity-of-interests" standard, and
if the language of St. Francis II or more recent de-
cisions implies the contrary, we hereby disavow
any suggestion that such is the Board's view. Our
choice of the "disparity-of-interests" standard was
just that--a choice-made in the exercise of the
Board's discretion under Section 9(b) of the Act.
Section 9(b) provides that "The Board shall
decide in each case . . . the unit appropriate for
the purposes of collective bargaining." The courts
have recognized consistently that, in making unit
determinations under Section 9(b), Congress en-
trusted the Board with broad discretion.19 Indeed,
the court in (Electrical Workers BEW Local 474
noted the breadth of the Board's discretion in
making unit determinations , 814 F.2d at 699, and
expressed no view as to what standard the Board
might ultimately embrace in the exercise of its dis-
cretion. Id. at 708 fn. 37, 711-712 and fn. 65. See
also id. at 707, citing Phelps Dodge Corp. v. NLRB,
14 Id at 699, 708-709.
15 Id at 699-700, see also id at 712
16 Id at 708.
' Y Id . at 709
18 271 NLRB at 951
19 See, e.g, NLRB Y. Action Automotive , 469 U. S. 490, 494 ( 1985).
367
313 U.S. 177, 197 ( 1941). Moreover , as the D.C.
Circuit further observed in Electrical Workers
IBEW Local 474, Congress in 1974 did not amend
Section 9 , and thus did nothing to diminish the
extent of the Board's discretion in resolving issues
arising under that provision of the statute.
Congress was concerned, however , that the ex-
tension of the coverage of the Act to employees of
nonprofit private hospitals might lead in certain in-
stances to the interruption of health care services
to patients , and enacted several new provisions to
forestall such interruptions . 2 0 At the same time, al-
though it did not amend Section 9, Congress in-
cluded language in the committee reports accompa-
nying the legislation , admonishing the Board not to
allow the proliferation of bargaining units among
health care employees .2.1
We think it was proper , therefore , in the exercise
of its discretion in making unit determinations in
the health care industry , for the Board to be mind-
ful of Congress' manifest concerns over possible
interruptions in the delivery of -health care services
when the Congress extended NLRB jurisdiction
over the health care industry in the 1974 amend-
ments to the Act. To that end, in St. Francis II the
Board continued to analyze the traditional "commu-
nity-of-interests" factors (discussed below) in deter-
mining appropriate health care units, 2 2 and we be-
lieve that the Board was within the scope of its dis-
cretion in St. Francis II in articulating a modified
community-of-interests standard , e.g., a "disparity-
of-interests" standard, for this unique and vital in-
dustry . As noted by the court in Electrical Workers
IBEW Local 474, 814 F.2d at 708 , for over 40 years
the Board has examined community -of-interests cri-
teria in deciding issues arising under Section 9(b).
Unlike the court , however, we do not regard the
"disparity-of-interests" test as an abandonment of
20 Sec 1(d) of the 1974 amendments amended Sec 8(d) of the Act to
require a party desiring to modify or terminate a contract in the health
care industry to give notice to both the other party and the Federal Me-
diation and Conciliation Service (FMCS) further in advance of the pro-
posed modification or termination than would be required in any other
industry . Sec 1(d) also requires unions and employers in the health care
industry to participate in mediation if called on to do so by FMCS Sec
1(e) of the amendments added Sec 8(g) to the Act, requiring labor orga-
nizations , at least 10 days before engaging in strikes or picketing at any
health care institution , to notify the institution in writing , and the FMCS,
of their intentions Notably, in no other industry is a labor organization
required to provide advance notice in writing of its intention to strike or
picket Sec 2 of the amendments added Sec 213 to the Labor Manage-
ment Relations Act, 29 U S C § 183, authorizing the director of FMCS
to establish a board of inquiry to investigate the issues involved in any
strike or lockout affecting a health care institution when it appears that
such a dispute will substantially interrupt the delivery of health care in
the area.
21 Individual sponsors of the legislation also stressed the need for the
Board, in exercising its discretion , to avoid unit proliferation The rele-
vant legislative history is cited at length in St Francis Ii, 271 NLRB at
951
22 271 NLRB at 953 and fn 35
368 DECISIONS OF THE NATIONAL. LABOR RELATIONS BOARD
that benchmark standard. Rather, we believe the
"disparity-of-interests" standard was an appropriate
adaptation of the very same factors considered
under a traditional "community-of-interests" stand-
ard in consideration of Congress' stated concerns in
extending jurisdiction to this industry,23 but also
was a product of the Board's own substantial expe-
rience and expertise derived from more than 10
years' administration of the Act and Section 9(b) in
the health care industry.24
As we indicated-but perhaps. did not explain
clearly enough-in St. Francis II, the "disparity-of-
interests" standard to a significant extent embodies
the "community-of-interests" approach. That is,
even under the disparity approach, the Board
judges the appropriateness of the unit sought in
terms of traditional community-of-interests criteria:
employees' wages, hours, and working conditions;
qualifications, training, and skills; frequency of con-
tacts and extent of interchange with each other;
frequency of transfers into and out of the unit
sought; common supervision; degree of functional
integration; collective-bargaining history; and area
bargaining patterns and practices. 2 s Under the
"disparity-of-interests" standard-as under the
"community-of-interest" approach-the Board
looks at the above factors both as they are shared
by employees in the unit petitioned for, and as they
tend to set those employees apart from other em-
ployees.26 Where the "disparity-of-interests" for-
mulation differs from the "community-of-interests"
standard, according to the Board's St. Francis II
decision, is in the significance afforded the above
factors. Because of Congress' admonition to avoid
unit fragmentation, the -"disparity-of-interests" test
requires more in the way of "disparities" or differ-
ences between the employees requested and those
in an overall unit to grant a separate unit in the
health care industry than would be required under
a "community-of-interests" formulation.27
In adopting the "disparity-of-interests" approach,
then, the Board did not simply abandon the tradi-
tional "community-of-interests" standard, as the
D.C. Circuit has suggested. Instead, the Board in
23 See fn 20, supra, which cites the statutory safety valves adopted by
the Congress.
24 In fact, the Board has long had a practice of taking account of the
characteristics of a particular industry in making unit determinations
under the "community-of-interests" standard See, e g., Baltimore Gas &
Electric Co, 206 NLRB 199, 201 (1973) (noting special characteristics of
the public utility industry that favor systemwide units unless certain spec-
ified factors are present); Garden State Hosiery Co, 74 NLRB 318, 323
(1947) (noting that "no circumstance peculiar to the industry itself .
militates against the establishment of the requested unit")
zs St Francis II, 271 NLRB at 953 and fn 35, citing Kalamazoo Paper
Box Corp, 136 NLRB 134 (1962).
26 See Newton-Wellesley Hospital, 250 NLRB 409, 411-412 (1980),
Kalamazoo Paper Box Corp, 136 NLRB at 137-138
27 St Francis II, 271 NLRB at 953
St. Francis II modified that standard to the degree
it thought necessary to give effect to the congres-
sional admonition against proliferation of health
care units. The "disparity-of-interests" standard is
not the only one that could have been formulated
by the Board, but we believe it was within the
Board's reasoned discretion to adopt that stand-
ard.2 s
We turn now to the facts of the case before us.
The Regional Director applied the "disparity-of-in-
terests" standard and found that the evidence did
not establish "sharper than usual" differences or
disparities between the terms and conditions of em-
ployment of the Employer's RNs and those of the
other professional employees. He concluded, there-
fore, that an all-RN unit was not appropriate and
that the smallest appropriate unit was an all-profes-
sional unit.
Applying existing Board law, as we have decid-
ed to do, we agree with the assessment of the Re-
gional Director. All of the Employer's professional
employees are subject to the same personnel poli-
cies, procedures and wage system, and receive the
same benefits. There is no evidence that the Em-
ployer deals with RNs separately from other pro-
fessional employees. Staff nurses are assigned to
pay grade 20.5, as are dieticians, medical technolo-
gists, and speech therapists (who together account
for 36 of the approximately 80 professional employ-
ees other than staff nurses). The lowest pay grade
for professionals is 16 (accountants); the highest is
26 (pharmacists and the financial analyst, who hap-
pens to be an RN). Although considerably more
professionals are in pay grades above 20.5 than in
lower grades, many of those employees in higher
pay grades also are RNs.
Although most nurses are assigned to depart-
ments in the division of patient care services, the
vice president of which also is an RN, others are
assigned to departments in other divisions, such as
training and development (division of human re-
sources development); ambulatory care, emergency
room, rehabilitation services, and respiratory care
(division of clinical services); and fiscal services
(division of fiscal services). RNs have daily con-
tacts with other professional employees, such as
pharmacists, medical technologists, and social
28 Also, contrary to the conclusion reached by the D.C Circuit, 814
F.2d at 699, 709, 715, the "disparity of interests" test does not entail an
implicit presumption that only two health care units-all professionals
and all nonprofessionals-are appropriate. The Board explicitly rejected
that interpretation of the amendments in St. Francis II, 271 NLRB at 953,
and we reiterate that rejection here We note also that, since St Francis
II was decided, we have consistently approved separate units of technical
employees and service, maintenance, and clerical employees in the health
care industry, over the contention of employers that only all-nonprofes-
sional units were appropriate See, e g , Southern Maryland Hospital, 274
NLRB 1470 (1985).
ST. VINCENT HOSPITAL
workers, and frequent and/or regular contacts with
such professionals as dieticians and physical thera-
pists. By virtue of their service on multidisciplinary
hospital committees,, staff nurses also interact fre-
quently with other professionals such as dieticians,
physical therapists, speech therapists, and recre-
ational therapists. Staff RNs work three shifts, 7
days a week, as do medical technologists. Pharma-
cists and physical therapists also work 7 days a
week, and on more than one shift.
We conclude from the foregoing, and our review
of the record, that the Regional Director properly
found that there do not exist "sharper than usual
differences" between nurses and other professional
employees of the Employer. The evidence estab-
lishes, rather, that nurses and other professionals
share common personnel policies and procedures
369
and fringe benefits, and have sufficient contacts and
interaction to support the finding that the smallest
appropriate bargaining unit is one consisting of all
the Employer's professional employees. See North
Arundel, Keokuk Area Hospital, and St. Francis II,
supra.
The election was held 9 April 1987, and the bal-
lots were impounded. Having affirmed the Region-
al Director's unit determination, we shall direct the
Regional Director to open and count the ballots
and issue the appropriate certification.
ORDER
The Regional Director for Region 19 is directed
to open and count the ballots cast in the 9 April
1987 election and issue the appropriate certifica-
tion.