Middletown Hospital Association

464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Middletown Hospital Association and Ohio Nurses Association Cases 9-CA-14866 and 9-CA- 15195 October 28 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 29 1986 the National Labor Rela tions Board issued a Decision and Order' in which it among other things adopted the administrative law judge s determination that under the dispari ty of interests standard set forth in St Francis Hospital 2 the petitioned for unit of registered nurses was inappropriate for collective bargaining The Board also adopted the judge s rulings that flowed from this determination because the unit was inappropriate a representation election that had been conducted in the unit was a nullity ob jections to the election were dismissed and a bar gaining order covering that unit if otherwise ap propriate could not be issued as a remedy for the unfair labor practices that had been found The Pe titioner the Ohio Nurses Association (ONA) filed a petition for review of the Board s decision with the United States Court of Appeals for the District of Columbia Circuit Under an agreement reached among the parties the only issue presented to the court on review was the Board s determination that the petitioned for unit was inappropriate While the ONA s petition for review was pend ing before the court of appeals, that court ruled in Electrical Workers IBEW Local 474 v NLRB (St Francis Hospital)3 that the Board had erred in St Francis II in concluding that the 1974 amend ments4 to the Act mandated the use of the dispar ity of interests standard and that the amendments compelled a presumption that there are only two appropriate units-professional and nonprofession al-in the health care industry 5 In view of the court s decision the Board on May 26 1987 moved the court to remand the present case for further consideration of the unit determination On September 16 1987 the court granted the Board s motion and remanded the case to the Board for re consideration in light of the court s decision in Electrical Workers IBEW Local 474 6 On March 8 1988 the Board notified the parties that it was reconsidering its decision in this case and invited them to file statements of position The General Counsel declined to file a statement but re iterated that a bargaining order would be a neces sary and appropriate remedy if the Board found the petitioned for bargaining unit to be appropriate Amicus Ohio Hospital Association declined to file a statement at that time The Respondent Middle town Hospital Association filed a statement argu ing that the petitioned for bargaining unit com posed solely of registered nurses was inappropriate and that in any event on various other grounds a bargaining order would not be an appropriate remedy for the unfair labor practices that had oc curred The Respondent also filed a motion to reopen the record for the Board to receive evi dence that assertedly pertained to the bargaining order issue The ONA filed a memorandum con tending that the petitioned for bargaining unit of registered nurses was appropriate and that the Board should order the Respondent to bargain with the ONA as the exclusive representative of that unit The ONA and the General Counsel also filed memoranda opposing the Respondent s motion to reopen the record The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel Following the court of appeals decision in Elec trical Workers IBEW Local 474 the Board in St Vincent Hospital? reconsidered the issue of health care unit determinations In that case the Board re iterated its earlier announced decision to engage in rulemaking for the purpose of identifying certain specific health care bargaining units that would be found appropriate except in the most unusual cir cumstances 8 Because the final rules would not become effective for a period of time the Board decided to process all petitions under existing law i e under the disparity of interests standard until the final rule had been issued In its second notice of proposed rulemaking the Board has re cently reiterated this position 9 Additionally the Board in St Vincent Hospital explained why the approach the Board took in St Francis II was appropriate and not incompatible with the court of appeals reasoning on review in ' 282 NLRB 541 2 271 NLRB 948 (1984) (St Francis I/) 3 814 F 2d 697 (D C Or 1987) 4 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 5814F2dat699 715 6 The court s mandate issued on November 12 1987 7 285 NLRB 365 (1987) 8 Member Johansen disagreed with the Board s decision to engage in rulemaking concerning health care bargaining units as he found rulemak mg to be inappropriate in this class of decisions Id at 3 fn 6 Neverthe less he concurs in the present decision as it applies existing law concern mg the unit issue 9 See 53 Fed Reg 33900 33931 (Sept 1 1988) Member Johansen dis rented there again indicating his disagreement with rulemaking in regard to health care units See 53 Fed Reg at 33934-33935 291 NLRB No 79 MIDDLETOWN HOSPITAL ASSN that case Thus we stressed that the Board in St Francis II did not state and did not intend to imply that its approach was mandated by either the 1974 amendments or their legislative history Rather we explained that the disparity of inter ests standard was a choice made in the exercise of the broad discretion with which Congress entrust ed the Board in Section 9(b) of the Act 10 Accord ingly the Board applied the disparity of interests standard to the unit determination before it in St Vincent Hospital Pending completion of the health care unit rulemaking the Board has followed this approach in subsequent cases 11 Having considered the submissions of the parties the court s decision in IBEW Local 474 and our decisions subsequent to that case we conclude that 10 See also the Board s decision on remand in St Francis Hospital 286 NLRB 1305 (1987) 11 See Presbyterian/St Luke s Medical Center 289 NLRB 249 (1988) St Francis Hospital supra 465 it is appropriate to apply existing Board law in de ciding the unit question in this case Applying ex isting Board law we again conclude for the rea sons stated in our prior Decision and Order in this case that the judge was correct in finding the peti tioned for unit of registered nurses to be inappro priate for collective bargaining Accordingly we shall reaffirm our determination that the petitioned for unit is inappropriate 12 ORDER The National Labor Relations Board reaffirms its determination contained in its Decision and Order previously issued at 282 NLRB 541 (1986) that the petitioned for unit of registered nurses is inappro priate for collective bargaining purposes 12 We also deny the Respondent s motion to reopen the record as in light of our decision here the evidence it seeks to introduce is irrelevant Nor do we reach the Respondents alternative argument that a bargaining order in any event would be inappropriate