St. Vincent Hospital And Health Center

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 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.