St. Francis Hospital

ST. FRANCIS HOSPITAL 1305 St. Francis Hospital and International Brotherhood of Electrical Workers, Local Union No. 474, AFL-CIO. Case 26-CA-10060 30 November 11987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 13 August 1984 the National Labor Relations Board issued its Decision and Order in this pro- ceeding,' in which it vacated its earlier Decision on Review and Direction,2 announced a new standard (the "disparity-of-interests" test) for deter- mining appropriate units for collective bargaining in the health care industry, and held that the record did not demonstrate that a unit limited to the maintenance employees of the Respondent (the Hospital) was an appropriate unit under the new test.3 The Union petitioned the United States Court of Appeals for the District of Columbia Circuit for review of the Board's decision.4 On 20 March 1987 the D.C. Circuit remanded the case to the Board. s The court held that the Board had committed legal error by concluding that the 1974 amendments6 to the Act mandate the use of the "disparity-of-interests" standard, and that they compel a presumption that there are only two appropriate units-professional and nonprofession- al-in the health care industry.7 The court rea- soned that Congress' failure to amend Section 9 of the Act (dealing with unit determinations) in 1974 indicates that Congress implicitly approved the Board's continued use of "community-of-interests" criteria in the health care industry.8 Although the I St Francis Hospital, 271 NLRB 948 (19134) (St. Francis II) 2 St. Francis Hospital, 265 NLRB 1025 (1982) (St. Francis 1) 8 St Francis II was before the Board on the General Counsel's Motion for Summary Judgment The General Counsel alleged that the hospital had violated Sec 8(a)(5) of the Act by refusing to bargain with the Union as the representative of employees in the certified maintenance unit, which the Board had found to be an appropriate unit in St Francis I. * In view of the fact that, at the time the, case was litigated , the parties had proceeded without benefit of its new analysis, the Board in St. Fran- cis II remanded the case to the Regional Director to permit the parties to adduce further evidence bearing on the unit determination issue . No fur- ther evidence was introduced, and on 26 June 1985 the Board dismissed the complaint because the record failed to demonstrate that the mainte- nance unit was appropriate (Not reported in Board volumes) 5 Electrical Workers IBEW Local 474 v NLRB, 814 F 2d 697 (D.C Cir 1987) e Pub L 93-360, 88 Stat 395 (July 26, 1974) Among other things, the amendments extended the coverage of the Act to employees of private nonprofit hospitals ' Electrical Workers IBEW Local 474 v. NLRB, supra, 814 F.2d at 699, 715. 9 Id at 711 court expressed no opinion concerning whether the Board could adopt the "disparity-of-interests" standard in the exercise of its discretion, it indicat- ed that it might approve the use of such a formula- tion if the Board explained its action adequately.9 The court remanded the case to the Board for re- consideration of whether the Hospital's mainte- nance employees constitute an appropriate bargain- ing unit.' 0 On 28 July 1987 we notified the parties that we had accepted the remand from the court of appeals, and invited the parties to submit statements of posi- tion regarding the remand issue. Both parties filed timely position statements. In the meantime, and in view of the D.C. Cir- cuit's remand, the Board has revisited the issue of health care unit determinations in a more recent case, St. Vincent Hospital." On 4 May 1987 we held oral argument on the question of what stand- ard should be used in making unit determinations in the health care industry, and especially on the con- sideration to be given the legislative history of the 1974 amendments in making such determinations. After considering the briefs and arguments of the parties and of several participating amici curiae, and after reflecting on the Agency's- lengthy expe- rience in making health care unit determinations, we decided to engage in rulemaking for the pur- pose of identifying certain specific units that would be found appropriate except in the most unusual circumstances. 12 Because the final rules would not become effective for at least several months, we decided to process all petitions under existing law-i.e., under the "disparity-of-interests" stand- ard of St. Francis II-until the final rule had been issued. l3 Recognizing that our decision to proceed in the interim under existing law might place us in con- flict with the views of the D.C. Circuit, we under- took in St. Vincent Hospital to explain why, in our opinion, the approach the Board took in St. Francis II was appropriate and not, in fact, incompatible with the court's reasoning. Thus, we stressed that the Board in St. Francis II did not state, and did not intend to imply, that its approach was mandat- ed by either the 1974 amendments or their legisla- 9 Id at 711-712 and fn 65 is Id at 715 ii 285 NLRB 365 (1987) 12 The Board's reasons for engaging in rulemaking are explained in St. Vincent Hospital, supra and in its notice of proposed rulemaking, 52 Fed. Reg 25142 (July 2, 1987) Chairman Dotson, for the reasons set forth at fn. 6 of St. Vincent Hospital, did not agree that rulemaking was appropri- ate in this class of decisions is St. Vincent Hospital, supra at 366 286 NLRB No. 123 1306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tive history.14 Rather, we explained that the "dis- parity-of-interests" standard was a choice made in the exercise of the broad discretion with which Congress entrusted the Board in Section 9(b).15 We find here, as we did in St. Vincent Hospital, that in exercising its discretion in adopting the "dis- parity-of-interests" standard, the Board properly considered the language in the committee reports accompanying the 1974 amendments, as well as statements made by individual members of Con- gress, that admonished the Board to avoid the pro- liferation of bargaining units in the health care in- dustry.16 Thus, although Congress did not amend Section 9 when it extended the coverage of the Act to include private nonprofit hospitals, it did manifest its concern over potential proliferation of health care bargaining units. Further, Congress in 1974 was concerned that extending organizational rights to health care employees might, in some cir- cumstances, lead to disruptions in the delivery of health care services, and enacted several statutory provisions to reduce the likelihood of such disrup- tions.17 The Board in the exercise of its discretion in St. Francis II was properly guided by these con- cerns of Congress in formulating a unit determina- tion standard. Also, as we emphasized in St. Vincent Hospital, the Board in St. Francis II did not abandon the "community-of-interests" criteria that it has used for more than 40 years in making bargaining unit determinations."' Indeed, under the "disparity" ap- proach, the Board continues to evaluate the appro- priateness of the unit sought in terms of traditional community-of-interests criteria.19 Under both the "disparity-of-interests" and the "community-of-in- terests" approaches, the Board considers those fac- tors both as they are shared by employees in the 14 Id. at 367. We also emphasized that, in our view , the "disparity-of- interests" test does not entail a presumption that only professional and nonprofessional units are appropriate in the health care industry Indeed, as we noted, id at 368 fn. 28, that interpretation was rejected in St. Fran- cis II, and separate units of technical employees and service, maintenance, and clerical employees have often been approved in cases decided under the "disparity-of-interests" test See, e .g., Southern Maryland Hospital, 274 NLRB 1470 ( 1985). 15 St Vincent Hospital, supra at 367 and fn 19, citing NLRB v. Action Automotive, Inc., 469 U S. 490, 494 ( 1985). 16 See St. Francis II, 271 NLRB at 951 , for the relevant legislative his- tory of the 1974 amendments. 17 Those provisions, inter alia, curtailed the right of health care em- ployees to strike and picket, and required additional advance notice of contract terminations and modifications . See St. Vincent Hospital at fn. 20, see also St. Francis II, 271 NLRB at 950 and fn. 8, Electrical Workers IBEW Loca1474, 814 F 2d at 701 and fn 12 is 285 NLRB at 367-368 Is I.e., employees' wages, hours, and working conditions; qualifica- tions, training, and skills; frequency of contacts and extent of interchange with each other, frequency of transfers into and out of the unit sought, common supervision, degree of functional integration , and collective-bar- gaining history and area bargaining patterns and practices See also St. Francis II, 271 NLRB at 953 and fn. 35, citing Kalamazoo Paper Box Corp, 136 NLRB 134 (1962) unit sought and as they set those employees apart from others.20 The "disparity" test differs from the "community" approach in the significance attrib- uted to those factors: the "disparity" test requires more in the way of differences between employees in the unit sought and those in an overall unit to grant a separate unit in the health care industry than would be required under a "community-of-in- terests" approach.21 In our view, then, as we noted in St. Vincent Hospital, the Board in formulating the "disparity- of-interests" approach did not make a radical break with the traditional "community-of-interests" stand- ard. Instead, informed by Congress' evident con- cern over possible unit proliferation and interrup- tions of services in the health care industry, and by this Agency's more than 10 years of experience ad- ministering the Act in that industry, 2 2 the Board exercised its reasoned discretion to modify the "community-of-interests" standard to the extent it thought necessary to address Congress' concerns while making organization among health care em- ployees feasible. Because we continue to examine the traditional "community-of-interests" factors when making health care unit determinations (and because we do not, either in theory or in practice, presume that only two units are appropriate in health care facilities), we believe that the "dispari- ty" approach is a permissible means of assuring health care employees "the fullest freedom in exer- cising the rights guaranteed by [the] Act,"23 even if it ordinarily results in fewer units than would be approved in other industries. We now return to the facts of the instant case.24 The approximately 39 maintenance employees in the petitioned-for unit work in 4 of the Hospital's 90 departments. They constitute a small minority- less than 10 percent-of the 438 service and main- tenance employees. The maintenance employees spend approximately 80 to 95 percent of their time working throughout the Hospital. They have significant and frequent work contact with nearly all kinds of health care employees, especially service employees. Although the maintenance employees are required to have skills and experience not possessed by the service employees,25 the functions they perform do not re- 20 St Vincent Hospital, supra at 368 21 Id citing St Francis II, 271 NLRB at 953 22 The Board has long taken account of the characteristics of particu- lar industries when making unit determinations in those industries See, e g., Baltimore Gas Co, 206 NLRB 199, 201 (1973) (noting special char- acteristics of the public utility industry that favor systemwide units unless certain specified factors are present) St Vincent Hospital, supra at 368 fn. 24 23 Sec 9(b) of the Act. 24 See St. Francis II, 271 NLRB at 954 25 St Francis I, 265 NLRB at 1033 ST. FRANCIS HOSPITAL 1307 quire a high degree of skill. There are no journey- man level employees, and the Hospital uses inde- pendent contractors to perform difficult work. The service and maintenance employees are sub- ject to the same hourly pay plan and are eligible for the same fringe benefits. The Hospital has cen- trally controlled labor relations policies as well as a uniform discipline and discharge system. Like the service employees, maintenance employees are sub- ject to departmental supervision. There have been seven transfers between service and maintenance departments in recent years. Thus, the record discloses that the Hospital's maintenance employees are not highly skilled, and that they have significant and frequent contact with service employees, with whom they share the same basic terms and conditions of employment. Applying the "disparity-of-interests" test as ex- plained above, we affirm our earlier finding that the facts in this case do not demonstrate a disparity of interests between the maintenance employees and the larger group of service employees, suffi- cient to justify a separate maintenance unit.26 Be- cause we find that the maintenance employees do not constitute an appropriate bargaining unit within the meaning of Section 9, it follows that the Hospi- tal did not violate the Act by refusing to bargain with the Union as the representative of those em- ployees. Accordingly, we shall affirm our dismissal of the complaint. ORDER The complaint is dismissed. 26 We emphasize that, in fording that the Hospital's maintenance em- ployees do not constitute an appropriate unit under the "dispantyof-m- terests" standard , we are relying entirely on the facts in this case , and not on any broader view concerning the appropriateness of maintenance units in general. We do not wish to give the impression that our minds are made up about particular units that (generally) will or will not be found appropriate before the completion of our rulemaking procedure. As we have stressed previously, the Board maintains an open mind on the sub- ject, and will make no final decision until it has examined the empirical evidence presented at the hearings. St Vincent Hospital, supra at 366. 4r