# Northern Montana Health Care Center v. National Labor Relations Board

> Court of Appeals for the Ninth Circuit · June 14, 1999 · 178 F.3d 1089

URL: https://www.frixlaw.com/law-library/cases/6982459

## Case

- **Full name:** NORTHERN MONTANA HEALTH CARE CENTER Northern Montana Health Care, Inc. Northern Montana Hospital, Petitioners/Cross-Respondents v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 14, 1999
- **Citations:** 178 F.3d 1089
- **Precedential status:** Published
- **Opinion:** Concurring in part by Thomas
- **Judges:** Fletcher, Reinhardt, Thomas
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6982459

## How later opinions describe it (automated extraction)

- holding that even if entities are a single employer, only those named in the complaint are bound by the adjudication

## Opinion text

THOMAS, Circuit Judge,
concurring in part and dissenting in part:
I concur in all of the majority opinion except for the determination that licensed practical nurses are not supervisors. The duties of licensed practical nurses in a long-term care nursing home, such as the Northern Montana Health Care Center, differ markedly from those in an acute care facility, such as the one involved in Providence Alaska Medical Center v. NLRB, 121 F.3d 548 (9th Cir.1997). The evidence in this case demonstrated that, as the Administrative Law Judge concluded after conducting a thorough hearing. Substantial evidence supports this finding. Thus, I agree with the assessment by the Administrative Law Judge that licensed practical nurses should not form part of the bargaining unit pursuant to National Labor Relations Board v. Health Care and Retirement Corporation of America, 511 U.S. 571, 573-74 , 114 S.Ct. 1778 , 128 L.Ed.2d 586 (1994).
Nonetheless, because the number of employees involved was insubstantial, the employer was not relieved of its responsibility to bargain with the unit. See David Wol-cott Kendall Memorial School v. NLRB, 866 F.2d 157, 161-62 (6th Cir.1989). The application of the insubstantial variance rule is particularly appropriate in the successorship context when (1) the historic bargaining unit had included the disputed employees, and (2) the employer did not tender sufficient evidence of a substantial possibility that exclusion of the licensed practical nurses would have altered an election outcome or fragmented the unit. See Stewart Granite Enterprises v. United Steelworkers of America, 255 NLRB 569 , 1981 WL 20317 (1981).
Thus, I concur in the judgment, but respectfully disagree with some of the rationale upon which it is based.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6982459. Public record. Not legal advice.