Petition — National Labor Relations Board v. Mercy Hospital Ass'n

Supreme Court brief1980

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79-1197 ‘ 7A ED

No. } FEB BY 1980

§u the Supreme Court of the United Staten

OCTOBER TERM, 1979

NATIONAL LABOR RELATIONS BOARD, PETITIONER

Vv.

MERCY HOospPITAL ASSOCIATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

WADE H. McCREE, JR.

Solicitor Genera]

Department of Justice

Washington, D.C. 20530

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Councel

LINDA SHER

Assistant General Counsel

LAWRENCE BLATNIK

Attorney

National Labor Relations Board

Washington, D.C. 20570

INDEX

Page

AEE LR 1

NN SESS ETRE Ss ls 2

Gees See. .............. 2

SE 2

SEE TEES SS A 3

Reasons for granting the writ -....................-...- 11

Nec ec sesconensnnenenee 21

NI LSS XESS O R la

Appendix B a 14a

aca Sos calsneensecrecnonese 16a

LARS a 29a

ARE is 2 0 08s 42a

; CITATIONS

Cases:

Allegheny General Hospital v. NLRB, 239

N.L.R.B. No. 104, enforcement denied, :

EE TE 11,18

American Broadcasting Co. v. Writers

Guild of America, 437 U.S. 411 -~........... 19

American Cyanamid Co., 181 N.L.R.B.

hacen cal aceeedouineitnowe 9

Beth Israel Hospital v. NLRB, 437 U.S.

kiana vicina ctretienriniesenpanneres 3, 13, 19

P Extendicare of West Virginia, Inc., 203

SEES Eee 15

Ford Motor Co. v. NLRB, 441 U.S. 488.... 19

Four Seasons Nursing Center, 208

| N.L.R.B. 403 14

Cases—Continued

Long Island College Hospital v. NLRB,

eS ER RIPEN yee ote eae Rae

Memorial Hospital of Roxborough v.

Nie, O65 2. oe

NLRB v. Local 103, Iron Workers, 434

RARE arth RINE ee Or ee” AOR

NLRB vy. St. Francis Hospital of Lyn-

Seen ee ee ON oe

NLRB v. West Suburban Hospital, 570

Ta aitanioe

Packard Motor Car Co. v. NLRB, 330

I ea a,

Pittsburgh Plate Glass Co. v. NLRB, 313

BN as aia cece cin

St. Vincent’s Hospital v. NLRB, 567 F.2d

BERT SECIS Tipe aad ee PERO tC OO

Wheeler-Van Label Co. v. NLRB, 408 F.2d

613, cert. denied, 396 U.S. 834 -.............

Woodland Park Hospital, Inc., 205

ER SAR a ee

Statute:

Labor Management Act of 1974, Pub. L.

No. 93-360, 88 Stat. 395 ............00..........

National Labor Relations Act, 29 U.S.C.

151 et seq.:

Section 8(a), 29 U.S.C. 158(a) .......

Section 8(a)(1), 29 U.S.C. 158(a)

EE SRR Cs ore

Section 8(a) (5), 29 U.S.C. 158(a)

EEN ERE OO a neat ae NCE

Section 8(b), 29 U.S.C. 158(b) ........

Section 8(e), 29 U.S.C. 158(e) .........

Section 8(g), 29 U.S.C. 158(g) ........

12-13

OC —» —»

OE i es Et

Ill

Statute—Continued Page

Seen S, 29 U.S0). 180 ................... 13

Section 9(a), 29 U.S.C. 159(a) -....... 3

Section 9(b), 29 U.S.C. 159 (b)..3, 12, 18, 14

Miscellaneous:

120 Cong. Ree. (1974) :

React oy See ne aie ee 15, 16, 17

BED icicctiseiccnectenienintnabininechiin’ 17

i I dA E sc \ ss eicietionile acteeacioecspeceiisivkaigi es 17

REESE oi een nse een ee 15

Coverage of Nonprofit Hospitals under

Natione! Labor Relations Act, 1972:

Hearings on H.R. 11857 Before the Sub-

comm. on Labor of the Senate Comm. on

Labor and Public Welfare, 92d Cong.,

me WE, (Rete? Set 17-18

Coverage of Nonprofit Hospitals under

National Labor Relations Act, 1978:

Hearings on S. 794 and S. 2292 Before

the Subcomm. on Labor of the Senate

Comm. on Labor and Public Welfare,

93d Cong., Ist Sess. (19738) -.......02200.2... 18

H.R. Rep. No. 93-1051, 93d Cong., 2d

Be PE ch ericirccteeneebladhastedsncicnks 4

N.L.R.B. Statistical Services (1979) ........ 11

S. 2292, 98d Cong., 1st Sess. (1973) -......... 13

S. Rep. No. 93-766, 93d Cong., 2d Sess.

BUTI: nex cetccncchnbacanaatcisaacihdaetanaaabiniastess 4

Iu thy Suyweme Court of the United States

OCTOBER TERM, 1979

No.

NATIONAL LABOR RELATIONS BOARD, PETITIONER

MERCY HOSPITAL ASSOCIATION

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The Solicitor General, on behalf of the National

Labor Relations Board, petitions for a writ of cer-

tiorari to review the judgment of the United States

Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-13a) is reported at 606 F.2d 22. The Board’s deci-

sion and order (App. C, infra, 16a-28a) are reported

at 238 N.L.R.B. No. 145. The Regional Director’s de-

cision and direction of election in the related repre-

sentation proceeding (App. D, infra, 29a-41a) is

unreported.

(1)

JURISDICTION

The judgment of the court of appeals (App. B,

infra, 14a-15a) was entered on September 4, 1979.

On December 4, 1979, Mr. Justice Marshall extended

the time for filing a petition until January 2, 1980.

On January 10, 1980, Mr. Justice Marshall further

extended the time for filing to and including Febru-

ary 1, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the 1974 Health Care Amendments to the

National Labor Relations Act permit the Board to

apply traditional community of interest criteria in

determining appropriate bargaining units in the

health care industry, provided the Board’s determi-

nations are consistent with the congressional admo-

nition to avoid undue proliferation of bargaining

units in health care institutions.

STATUTE INVOLVED

The relevant provisions of the National Labor Re-

lations Act (29 U.S.C. 151, et seg.), are as follows:

Section 8(a) It shall be an unfair labor prac-

tice for an employer—

(1) to interfere with, restrain, or coerce em-

ployees in the exercise of the rights guaranteed

in section 7;

* * * * ¥*

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 9(a).

* * * * *

Section 9(a) Representatives designated or se-

lected for the purposes of collective bargaining

by the majority of the employees in a unit ap-

propriate for such purposes, shall be the exclu-

Sive representatives of all the employees in such

unit for the purposes of collective bargaining

in respect to rates of pay, wages, hours of em-

ployment, or other conditions of employment:

* * *

(b) The Board shall decide in each case

whether, in order to assure to employees the

fullest freedom in exercising the rights guaran-

teed by this Act, the unit appropriate for the

purposes of collective bargaining shall be the

employer unit, craft unit, plant unit, or sub-

division thereof: * * *,

STATEMENT

1. In 1974, Congress extended the coverage of the

National Labor Relations Act to previously exempt

nonprofit hospitals (Labor-Management Relations Act

of 1974, Pub. L. No. 93-360, 88 Stat. 395), concluding

“that improvements in health care would result from

the right to organize, and that unionism is necessary

to overcome the poor working conditions retarding the

delivery of quality health care” (Beth Israel v. NLRB,

437 U.S. 483, 499-500 (1978) ). At thesame time, Con-

gress addressed public concern “for the need to avoid

disruption of patient care whenever possible” (S. Rep.

No. 93-766, 93d Cong., 2d Sess. 6 (1974) ) by amend-

ing Sections 8(b) and 8(e) of the Act to provide for

advance notice of picketing and strikes, early notice

of contract modification or termination, notice that

an initial contract is to be negotiated, and mandatory

mediation.

Similarly, Congress sought to reduce the likelihood

of work stoppages by urging the National Labor Re-

lations Board to limit the number of bargaining units

it certified in nonprofit hospitals. House and Senate

reports accompanying the final bill included the fol-

lowing statement (S. Rep. No. 93-766, supra, at 5;

H.R. Rep. No. 93-1051, 98d Cong., 2d Sess. 6-7

(1974):

Due consideration should be given by the Board

to preventing proliferation of bargaining units

in the health care industry. In this connection,

the Committee notes with approval the recent

Board decisions in Four Seasons Nursing Cen-

ter, 208 N.L.R.B. No. 50, 85 LRRM 1093 (1974),

and Woodland Park Hospital, 205 N.L.R.B. No.

144, 84 LRRM 1075 (1978), as well as the trend

toward broader units enunciated in Extendicare

of West Virginia, 203 N.L.R.B. No. 170, 83

LRRM 1242 (19738).

1 By our reference to Extendicare, we do net neces-

sarily approve all of the holdings of that decision.

2. On September 26, 1977, the International Union

of Operating Engineers, Local 30-30A, AFL-CIO (the

“Union”) filed a petition for a representation elec-

tion seeking certification as the exclusive bargaining

agent for a unit of maintenance and engineering em-

ployees employed by Mercy Hospital Association (the

“Hospital’”’). The Hospital opposed the petition on

the ground that the requested unit was inappropriate

for collective bargaining and that the only appropri-

ate unit was one including all service and mainte-

nance employees (A. 1, 12-18, 114-115).1 A hearing

was held before a Board hearing officer on October 20

and 27, 1977, at which the following evidence was

adduced (A. 12, 110).

The Hospital is a nonprofit 390-bed health care

facility located in Rockville Centre, New York. It is

organized into 32 departments or subdivisions, most

of which are managed on a day-to-day basis by their

respective department heads (A. 4, 138, 31, 111-112,

118-120). The Hospital’s Building, Plant and Ground

Maintenance Department (the “maintenance depart-

ment”) is comprised of 23 maintenance and engi-

neering employees serving in 17 different job classi-

fications (A. 18-14, 106)?

The maintenance department operates under the

supervision of a maintenance coordinator who deter-

mines the qualifications required for all positions

1“A” refers to the appendix in the court below; copies have

been lodged with the Clerk of this Court.

2 Included in these classifications are employees in the car-

pentry, paint, plumbing and electrical shops, employees in the

boiler plant, and employees engaged in general maintenance

and grounds work (A. 13-14, 32-57, 106, 281-286).

within the department and is responsible for the se-

lection and hiring, discipline, firing, evaluation, pro-

motion, scheduling, assignment, and direction of all

maintenance and engineering employees (A. 14, 120-

123, 134-135, 161, 232-233). With the exception of

carpenters, electricians, and boiler room personnel

whe report to the maintenance coordinator through

shop chiefs, all maintenance department employees

are under the sole and direct supervision of the

coordinator (A. 14, 232-238, 332).

To meet the Hospital’s standards for entry, main-

tenance department employees must be highly skilled

and experienced in the various crafts and trades they

practice (A. 15).* They are charged with maintain-

ing the Hospital’s grounds, buildings and equipment

in safe and efficient operating condition. Their duties

include inspecting, testing, servicing and operating

sophisticated and complex equipment; performing con-

struction, alteration and renovation work; and carry-

ing out electrical work in compliance with applicable

codes (A. 15-16, 32-57, 107-108, 175-178, 181, 185-

186, 190, 193-195, 197-199, 205-206, 213, 278, 289-

292, 313, 316-317).

3 For instance, the chief watch engineer and assistant chief

watch engineer must have either a marine or stationary engi-

neer’s license. In addition, both had substantial prior experi-

ence in operating high-pressure boiler room equipment (A. 15,

49, 51, 60-61, 100-101, 204-205, 280, 287, 288-289, 319-320).

In fact, every one of the maintenance department’s employees

had significant experience in the craft or trade for which he

or she was hired or in a related field before joining the de-

partment (A. 15, 58-59, 62-77, 80-81, 84-95, 98-99, 102-103,

180-182, 198, 208-210, 214-218, 247-249).

Maintenance department employees frequently as-

sist each other in the performance of their duties and

there is substantial interchange of skills and func-

tions among them (A. 17-18, 32-38, 35, 38, 40, 108,

186, 190, 192, 227-228, 240-248, 250, 261-262, 268-

269, 279, 288-291, 311-312, 314-316, 320-322) .* In con-

trast, maintenance department employees lack signifi-

cant functional and operational integration with other

hospital personnel, including the Hospital’s service

employees.° Although maintenance department em-

ployees work at locations throughout the hospital

complex, they are not assisted by other employees in

the performan~2 of their duties and their work is

carried out with a minimum of interruption of the

work of other departments (A. 19, 107, 256-258,

322).

Maintenance and other employees do not share com-

mon supervision (A. 19, 322). Nor is there signifi-

cant transfer between the maintenance department

and other departments; all but one of the present

In addition, maintenance department employees report to

a common office located in the hospital basement and work

out of shop areas located in close proximity along the base-

ment corridor; have their own locker rooms, which are not

utilized by other employees; wear identifying uniforms differ-

ent from those of other employees; and have time cards

grouped together (A. 17-18, 141, 144, 148-151, 162, 267).

5 The Hospital’s service employees include aides, orderlies,

technicians, printers, and housekeeping, laundry, dietary, mail

room and communications workers. They typically perform

their duties in conjunction with technical, nursing and other

employees (A. 126-130, 146-147).

maintenance department employees were hired di-

rectly into the department, and no maintenance de-

partment employee has ever been transferred out of

the department (A. 15, 58-59, 166-167). Promotion

within the maintenance department is encouraged,

and training and skills acquired on the job generally

lead to advancement (A. 15, 18, 27, 166, 180-182, 202,

204, 207, 214-215, 217-218, 228, 271-272, 287, 317).

Consistent with their specialized skill and experience,

maintenance department employees generally receive

higher wages than the Hospital’s service employees.

The Hospital’s pay scale for the maintenance depart-

ment provides higher rates of pay at both the top

and bottom levels, and a higher rate of progression

within each level than does the scale applicable to

service employees (A. 16, 22-25).

Based on the foregoing, the Regional Director found

that a unit comprised of the Hospital’s maintenance

department employees would be appropriate for col-

lective bargaining purposes, and directed that an

election be conducted (App. D, infra, 29a-41a).° The

The unit found appropriate by the Regional Director is

as follows (App. D, infra, 38a-39a) :

All full-time and regular part-time maintenance and

engineering employees, including maintenance workers,

maintenance mechanics, electricians, gardners [sic],

groundsmen, carpenters, painter/plasters [sic]), plumb-

ers, boiler men, watch engineers and chauffeurs employeed

by the [Hospital] at its Rockville Centre, New York loca-

tion, excluding all other employees, guards and super-

visors as defined in the Act.

Hospital’s request for review of that finding was de-

nied by the Board (A. 3; App. C, infra, 18a).

After the Union won the ensuing representation

election and was certified as the unit’s bargaining

representative (A. 1, 6; App. C, infra, 21a), the Hos-

pital refused to bargain. The Board found the Hos-

pital to have thereby violated Sections 8(a)(5) and

8(a)(1) of the Act, and issued a bargaining order

(7d. at 22a-26a).

3. The court of appeals denied enforcement of the

order and remanded “for consideration of the pro-

priety of the certified unit under a standard afford-

ing appropriate deference to the mandate of Con-

gress [to avoid undue proliferation of bargaining

units]” (App. A, infra, 2a). In the court’s view, the

Board had initially been solicitous of this non-

proliferation admonition but in later cases had be-

come less so, concluding that it could give “sufficient

deference to the congressional admonition * * * by

applying to proposed hospital bargaining units the

same community of interest approach ordinarily

utilized for unit determinations in an industrial con-

text” (id. at 10a).7 Noting that this conclusion was

based in part on the belief that Congress had added

7 The community of interest criteria traditionally used by

the Board include mutuality of interest in wages and hours;

commonality of supervision, skills and functions; frequency

of contact with other employees; degree of interchange and

functional integration with other employees; and area bar-

gaining practices. See, e.g., American Cyanamid Co., 131

N.L.R.B. 909, 910 (1961).

the admonition primarily “to forestall the grouping

of health care institution employees by virtually every

professional interest or job classification as has oc-

curred, for example, in the construction industry”

(id. at 11a), the court stated (id. at 11a-12a):

We disagree. Our reading of the legislative his-

tory leads us to conclude that in the 1974 amend-

ment Congress was expressing concern not only

that health care institutions be spared the egregi-

ous unit proliferation of the construction trades

but that less extreme unit fragmentation aris-

ing from application of usual industrial unit

eriteria could also impede effective delivery of

health care services. * * * Thus, we hold along

with our sister circuits that when the Board

makes a unit determination for health care in-

stitution employees, traditional community of

interest factors “must be put in balance against

the public interest in preventing fragmentation

in the health care field.” St. Vincent's Hospital

v. N.L.R.B., [567 F.2d 588, 592 (3d Cir. 1977) ].

The Board in its decision must specify “the man-

ner in which its unit determination * * * imple-

ment[s] or reflect[s] that admonition * * *.”

N.L.R.B. v. West Suburban Hospital, [570 F.2d

213, 216 (7th Cir. 1978) ].

The court concluded that “[s]uch a course was not

followed in the” instant case (App. A, infra, 12a).

< oO Cee acorn «

REASONS FOR GRANTING THE WRIT

The court of appeals’ decision, together with simi-

lar decisions in other circuits,® has created consider-

able confusion regarding the standard the Board

should apply in making bargaining unit determina-

tions in the health care industry. The Board has long

since settled the question in other industries, enabling

it to discharge effectively and with minimum disrup-

tion to future labor relations its statutory duty to

determine whether proposed bargaining units are ap-

propriate. In contrast, the health care industry, cur-

rently the subject of intense organizational activity,’

has been unsettled by the spate of decisions rejecting

8 See Allegheny General Hospital v. NLRB, 608 F.2d 965

(3d Cir. 1979) ; NLRB v. West Suburban Hospital, 570 F.2d

213, 216 (7th Cir. 1978); St. Vincent’s Hospital v. NLRB,

567 F.2d 588 (3d Cir. 1977). See also NLRB v. St. Francis

Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979); Long

Island College Hospital v. NLRB, 566 F.2d 833 (2d Cir. 1977) ;

Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d

Cir. 1976).

® Between August 1974 and January 1979, the Board con-

ducted 1160 representation elections in hospitals: in half,

a union won the election and subsequently was certified.

N.L.R.B. Statistical Services (1979). Several cases presently

pending in courts of appeals involve unit determinations in

health care institutions. Kansas City College of Osteopathic

Medicine v. NLRB, No. 79-1806 (8th Cir.) ; Fresno Com-

munity Hospital v. NLRB, No. 79-7510 (9th Cir.) ; Riverside

Methodist Hospital v. NLRB, No. 79-1608 (6th Cir.) ; Trinity

Memorial Hospital of Cudahy, Inc. v. NLRB, No. 79-2071 (7th

Cir.) ; NLRB v. Missouri Methodist Hospital Assoc., No. 79-

1837 (8th Cir.), and see Yonkers General Hospital v. NLRB,

No. 79-4124 (2d Cir.), remanded to the Board Jan. 17, 1980

in light of the court’s decision in the instant case.

Board bargaining unit determinations. As the instant

case demonstrates, uncertainty as to the validity of

such determinations results in employer refusals to

bargain with certified units, leading to time- and

resource-consuming review and enforcement pro-

ceedings that inevitably delay the exercise of employee

representational rights and, in some cases, erode them

altogether. It is therefore important that this Court

resolve the question presented here.

1. Congress has conferred upon the Board the au-

thority and responsibility, under Section 9 (b) of the

Act, 29 U.S.C. 159 (b), to “decide in each case whether,

in order to assure to employees the fullest freedom in

exercising the rights guaranteed by this Act, the unit

appropriate for the purposes of collective bargaining

shall be the employer unit, craft unit, plant unit, or

subdivision thereof.” As this Court has noted, “([t]he

issue as to what unit is appropriate for bargaining is

one for which no absolute rule of law is laid down by

statute, and none should be by decision.” Packard

Motor Car Co. v. NLRB, 330 U.S. 485, 491 (1947).

The Board, therefore, necessarily exercises “a large

measure of informed discretion” in determining the

scope of an appropriate unit, “and the decision of the

Board, if not final, is rarely to be disturbed.” Ibid.

Moreover, in order to effectuate the right of em-

ployees to self-organization, the Board, in making

unit determinations, is not required to select the only

appropriate or even the most appropriate unit, but

merely “to choose an appropriate unit 72 © [from]

several appropriate ones.” Wheeler-Van Label Co. v.

fi ic AA AB an b AI.

pile ED

NLRB, 408 F.2d 613, 617 (2d Cir.), cert. denied,

396 U.S. 834 (1969). See also Pittsburgh Plate

Glass Co. v. NLRB, 313 U.S. 146, 152 (1941).

Thus, a group of employees with similar interests is

not precluded from seeking representation merely be-

cause other categories of employees who might also

appropriately be included in the same unit do not

share that desire.

2. When Congress amended the Act in 1974 to

extend its coverage to nonprofit hospitals, it modified

various provisions of the Act to meet the particular

needs of such institutions. See page 4, supra. How-

ever, Congress did not consider it necessary to modify

or qualify the terms of Section 9(b). Indeed, the

Senate rejected a proposal by Senator Taft that would

have amended Section 9 to limit to four the number

of bargaining units that could be found appropriate

in health care institutions absent employer consent:

(1) all professional employees; (2) all technicians;

(3) all clerical employees; (4) all service and main-

tenance employees. S. 2292, 93d Cong., 1st Sess.

(1973).

Congress’s rejection of this proposal in favor of

the insertion in the legislative history of a general

admonition to avoid undue bargaining unit prolifera-

tion manifests an intent to leave to the Board’s sound

discretion (to be exercised in light of that admoni-

tion) the determination of what units are appropriate

in the health care industry. As this Court observed

in Beth Israel Hospital v. NLRB, 487 U.S. 483, 497

(1978), in rejecting the argument that given Con-

gress’s concern that extension of the Act to hospital

workers not result in disruption to patient care, the

Board is precluded from applying its traditional prin-

ciples regarding solicitation and distribution:

It is significant that * * * Congress did not enact

any special provision regarding solicitation and

distribution in particular or disruption of patient

care in general other than through strikes. We

can only infer, therefore, that Congress was

satisfied to rely on the Board to continue to exer-

cise the responsibility to strike the appropriate

balance between the interests of hospital em-

ployees, patients and employers.

Here, Congress was “satisfied to rely on the Board”

to strike the appropriate balance between the need

to minimize the likelihood of disruption to patient

care and the Board’s statutory obligation under Sec-

tion 9(b) to “assure to employees the fullest free-

dom in exercising” the right to organize and be

represented.

Like the form, the language chosen by Congress

to admonish against bargaining unit proliferation

was calculated to preserve the Board’s traditional

flexibility in making unit determinations.”

10 The cases referred to in the admonition do not indicate an

intent on the part of Congress to limit the Board’s discretion or

preclude the type of unit found appropriate here. In Four Sea-

sons Nursing Center, 208 N.L.R.B. 403 (1974), the Board dis-

missed a petition for a unit of two unskilled maintenance

employees. In Woodland Park Hospital, Inc., 205 N.L.R.B.

888, 889 (1973), where the hospital employed some 45 tech-

nicians in eight different departments, the Board determined

that a departmental unit of 12 x-ray technicians was inap-

{

RY BIA HORS o Me

act

Sel aad

Due consideration should be given by the Board

to preventing proliferation of bargaining units

in the health care industry. In this connection,

the Committee notes with approval the recent

Board decisions in Four Seasons Nursing Center,

208 N.L.R.B. No. 50, 85 LRRM 1093 (1974),

and Woodland Park Hospital, 205 N.L.R.B. No.

144, 84 LRRM 1075 (1978), as well as the trend

toward broader units enunciated in Extendicare

of West Virginia, 203 N.L.R.B. No. 170, 83

LRRM 1242 (19738).' [120 Cong. Ree. 12944

(1974) ]

1 By our reference to Extendicare, we do not neces-

sarily approve all of the holdings of that decision.

As Senator Williams, sponsor of the bill (S. 3203)

ultimately enacted, explained (120 Cong. Rec. 22575

(1974) ):

The National Labor Relations Board has

shown good judgment in establishing appropriate

units for the purpose of collective bargaining,

particularly in wrestling with units in newly

covered industries. While the Board has, as a

propriate, since the employees did not have a community of

interest that was separately identifiable from some of the

other technical employees. In E'xtendicare of West Virginia,

Inc., 203 N.L.R.B. 1232, 1233 (1973), the union sought repre-

sentation of three separate units—licensed practical nurses,

technical employees, and service and maintenance employees.

The hospital contended that the only appropriate unit was one

consisting of all employees. The Board grouped together tech-

nical employees and service and maintenance employees be-

cause they shared a substantial community of interest. The

question of a separate skilled maintenance unit was not pre-

sented for the Board’s consideration. See Long Island College

Hospital v. NLRB, 566 F.2d 838, 844 n.4 (2d Cir. 1977).

rule, tended to avoid unnecessary proliferation

of collective bargaining units, sometimes circum-

stances require that there be a number of bar-

gaining units among nonsupervisory employees,

particularly where there is such a history in the

area of a notable disparity of interests between

employees in different job classifications.

While the committee clearly intends that the

Board give due consideration to its admonition

to avoid undue proliferation of units in the

health care industry, it did not, within this

framework, intend to preclude the Board, act-

ing in the public interest, from exercising its

specialized experience and expert knowledge in

determining appropriate bargaining units.

Even Senator Taft, who eventually co-sponsored S.

3203, while emphasizing that the Board should exer-

cise “great caution” to avoid “[u]nwarranted unit

fragmentation” pronounced the non-proliferation ad-

monition “a sound approach and a constructive com-

promise as the Board should be permitted some flexi-

bility in unit determination cases.” 120 Cong. Rec.

12944 (1974).

3. In admonishing the Board to give “[d]ue con-

sideration * * * to preventing proliferation of bar-

gaining units in the health care industry,’’ Congress

responded to the fact that hospitals employ special-

ists in scores of categories, each of which conceivably

could claim entitlement to a separate bargaining unit

based on distinctions of skill. Thus, Senator Taft

spoke of the danger of permitting “each professional

interest and job classification * * * to form a separate

wo oc ta

bargaining unit * * *.” 120 Cong. Rec. 12944 (1974)

(emphasis added) .* He also warned that unwarranted

unit fragmentation would be productive of “jurisdic-

tional disputes and work stoppages,” adding that

“[h]ealth-care institutions must not be permitted

to go the route of other industries, particularly the

construction trades.” Id. at 12944-12945. Similarly,

during hearings on the bills which formed the basis

for the 1974 amendments, various health care industry

representatives expressed the desire to avoid a highly

fragmented craft pattern of bargaining.”

1 Similarly, Senator Dominick remarked that “[t]here are

approximately two hundred potential bargaining units as now

defined by the Act within the walls of almost every hospital.”

120 Cong. Rec. 19269 (1974).

” For example, Jerry Ransohoff, Executive Secretary of the

Greater Cincinnati Hospital Council, observed:

Because it is labor-intensive, the health industry and its

patients are critically dependent upon the effective team

function of the people involved. While a work stoppage

or slowdown may be acceptable in the building industry

or the newspaper industry, it can mean pain, continued

illness or even death in a hospital. Like construction and

newspapers, also relatively labor-intensive, hospitals are

divided into many highly specialized crafts, each of which

has a vital role in the team effort. The legislation which

you are now considering has contributed to fractionation

and multiple craft negotiation in construction and news-

papers. Six stereotypers can tie up a major newspaper.

It is conceivable that 10 laboratory technologists can

close a major hospital. Newspaper negotiators deal with

seven or eight craft unions. The present legislation, as

written could envision a hospital administrator dealing

with 15 or more.

Coverage of Nonprofit Hospitals under National Labor Rela-

tions Act, 1972: Hearings on H.R. 11357 Before the Subcomm.

As the court of appeals noted (App. A, infra, 10a),

the Board examined this legislative history at length

in Allegheny General Hospital, 239 N.L.R.B. No. 104

(1978) (App. E, infra, 42a-71a), enforcement de-

nied, 608 F.2d 965 (3d Cir. 1979), and concluded that

the congressional admonition was not intended to cau-

tion against application of the standards applied to

the industrial sector generally, but rather as a caution

to avoid the extreme fragmentation along craft or

skill lines described above (App. E, infra, 49a-56a).

Accordingly, the Board reasoned that “Congress in-

on Labor of the Senate Comm. on Labor and Public Welfare,

92d Cong., 2d Sess. 238-239 (1972).

William Emmanuel, testifying on behalf of the California

Hospital Association, explained that hospitals are “unusually

vulnerable” to the problem of unit proliferation “because of

the diversity and makeup of the work force,” and expressed

the fear that “the Board would approve 10 or 15 or possibly

even more bargaining units in one hospital, all with different

contract expiration dates” which “would lead to a situation

where a hospital would have absolutely no labor stability.”

Id. at 158. Sidney Lewine, testifying on behalf of the Ameri-

can Hospital Association, raised the spectre of separate bar-

gaining units for each professional and craft grouping, noting

that “[t]here are over 125 separate occupational classifica-

tions in the health care field with an overwhelming percentage

of the employees in these classifications being critical to the

efficient operation of hospitals.” Lewine concluded that “[t]he

health care institutions of this country would face major

difficulties in attempting to provide coordinated services if

forced to bargain separately with many different employee

groups within their institution.” Coverage of Nonprofit Hos-

pitals under National Labor Relations Act, 1973: Hearings on

S. 794 and S. 2292 Before the Subcomm. on Labor of the

Senate Comm. on Labor and Public Welfare, 93d Cong., 1st

Sess. 175 (1978).

Ab RES ia arn: eee mes OA

tended that the appropriateness of health care units

should be determined by the Board’s traditional com-

munity-of-interest criteria” (id. at 56a), subject to

the caveat that groupings based on crafts, profes-

sional skills, or job functions should be held to a

minimum.

Applying this standard, since 1974 the Board has

found appropriate in the health care industry at most

four nonprofessional units: technicians, office clerical

employees, service employees, and maintenance em-

ployees. Jd. at 68a." Professional employees have

been grouped into three units: physicians, registered

nurses, all other professionals. Ibid. It is the Board’s

informed judgment that “[t]hese [seven] basic units

are sufficiently inclusive to cover any health care in-

stitution’s complement of employees.” Ibid.

4. The Board’s reading of the pertinent legisla-

tive history is reasonable and, accordingly, entitled

to deference. Beth Israel Hospital v. NLRB, supra,

437 U.S. at 499-500. See also Ford Motor Co. v.

NLRB, 441 U.S. 488, 497 (1979); American Broad-

casting Co. v. Writers Guild of America, 437 U.S. 411,

431 (1978); NLRB v. Local 108 Iron Workers, 434

U.S. 335, 350 (1978). Moreover, whatever the de-

gree of bargaining unit fragmentation Congress

sought to avoid, the bargaining unit pattern that has

emerged in the health care industry meets the test.

18 The Board has on occasion found powerhouse employees

entitled to separate representation but only where the main-

tenance and service workers were combined in a single unit.

Where a separate maintenance unit was found appropriate,

powerhouse employees were included in it, thus preserving the

four-unit maximum for nonprofessionals. Jd. at 68a-69a.

20 21

It is plain that without abandoning its principal re- | CONCLUSION

liance on traditional community of interest criteria, |

the Board has in fact paid heed to Congress’s admoni- ;

tion. Thus, the court of appeals’ quarrel with the

Board exa!ts form over substance. The decision below j Respectfully submitted.

seeks to do what Congress chose not to do—to dictate

to the Board the manner in which the congressional

The petition for a writ of certiorari should be

granted.

admonition is to be respected. Wane H, McCame. Je.

Worse, the practical effect of the decision is to re- | Sstteteey General

quire the Board to select the broadest possible bargain- | WILLIAM A. LUBBERS

: , ‘ ‘ i General Counsel

ing unit absent special circumstances, even though a i

less inclusive unit would not produce the result Con- JOHN E. HIGGINS, JR.

i Deputy General Counsel

gress feared. As a consequence, employees desiring i

tation who would otherwise constitute an ap- ) : ——— er

rep —— ? : : : Pp : Acting Associate General Counsel

propriate unit must forego representation if they sci iia

share interests with a broader group of employees, ‘ Deputy Associate General Counsel

until and unless the larger group shares that desire. Lixpa Sume

Such a result would deny the very rights to collective ; Assistant General Counsel

representation that Congress sought to confer in ex- LAWRENCE BLATNIK

tending the Act to employees in health care institu- : Attorney

tions. In effect, the court of appeals has reversed the | Natwonal Labor Relations Board

exception and the rule. 5 FEBRUARY 1980

AUR ONS rs: Keel

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 1168—-August Term, 1978

(Argued June 15,1979 Decided September 4, 1979)

Docket No. 79-4044

NATIONAL LABOR RELATIONS BOARD, PETITIONER

anf) me

MERCY HOSPITAL ASSOCIATION, RESPONDENT.

Before: MANSFIELD, MULLIGAN and TIMBERS, Cir-

cuit Judges.

MULLIGAN, Circuit Judge:

The National Labor Relations Board applies for

enforcement of its order requiring the Mercy Hospital

Association (the Hospital) to bargain with a Board-

certified union consisting of the maintenance em-

ployees of the Hospital. In its decision certifying

the bargaining unit the Board did not discuss the

weight—if any—which it gave to the congressional

admonition against the proliferation of bargaining

units in the health care field. We therefore remand

to the Board for consideration of the propriety of

the certified unit under a standard affording ap-

propriate deference to the mandate of Congress.

The Hospital, a non-profit 390 bed facility, retains

1,287 full and part-time employees. There is no

history of collective bargaining for any Hospital

employees. The Hospital is organized into 32 depart-

ments or subdivisions of which the maintenance

department is one. At the time the petition for elec-

tion was filed there were 23 maintenance department

employees with 17 different job titles."

In September, 1977 the International Union of

Operating Engineers, Local 30-30A, AFL-CIO (the

The 17 job classifications are allocated among various

skills or shops as follows:

carpentry shop: chief carpenter (1)

senior carpenter (2)

maintenance carpenter (this position

was open at the time of the hearing)

paint shop: painter/plasterer (1)

plumbing shop: maintenance plumber (1)

maintenance mechanic (1)

electrical shop: chief electrician (1)

maintenance electrician (2)

boiler plant: chief watch engineer (1)

assistant chief watch engineer (1)

senior watch engineer (2)

maintenance boiler room attendant (1)

general

maintenance: senior maintenance worker (3)

maintenance worker (3)

grounds: senior gardner (1)

groundsman (1)

chauffeur (1)

ee eo ee eee

tal 2) Mea aes

Union), filed with the Board a petition for certifica-

tion as the exclusive bargaining representative of the

Hospital’s maintenance employees. The Hospital con-

tested the propriety of such a bargaining unit, claim-

ing, inter alia, that limiting the unit to maintenance

employees would in this instance contravene the

directive of Congress that the Board give due con-

sideration to preventing proliferation of bargaining

units in non-profit health care facilities. After hear-

ings on the issue the Board’s regional director found

that a separate unit of maintenance employees was

appropriate for collective bargaining. In December,

1977 the Board denied the Hospital’s request for

review of the regional director’s decision and direc-

tion of election. Thereafter, an election was held in

which a majority of the employees in the unit se-

lected the Union as their collective bargaining rep-

resentation. When the Hospital refused to negotiate

the Union filed an unfair labor practice charge with

the Board, alleging a violation of sections 8(a) (1)

and 8(a) (5) of the Act, 29 U.S.C. § 158(a) (1), (5).

The Board’s General Counsel moved for summary

judgment on the ground that the issues raised by the

Hospital had been litigated in the underlying repre-

sentation proceeding. The Board granted the motion,

finding that the Hospital was seeking to relitigate

issues decided against it in the presentation proceed-

ing, and that the Union had been properly certified

as bargaining representative of the Hospital’s mainte-

nance employees. Therefore, the Board concluded

that the Hospital’s refusal to bargain was in vio-

a eS i ee eg le

lation of the Act and required the Hospital to bargain

with the Union upon request. 3

Under the Act the Board has the responsibility to

“decide in each case whether, in order to assure to

employees the fullest freedom in exercising the rights

guaranteed by this subchapter, the unit appropriate

for the purposes of collective bargaining shall be the

employer unit, craft unit, plant unit, or subdivision

thereof.” Section 9(b), 29 U.S.C. § 159(b). Hence,

unit determinations are matters committed by statute

to the Board’s discretion and are rarely disturbed by

the courts. Packard Motor Car Co. v. N.L.R.B., 330

U.S. 485 (1947). “Nevertheless, it remains for the

courts to insure that the exercise of the agency’s

discretion is not unreasonable, arbitrary, or in con-

flict with congressional intent.” St. Vincent’s Hospital

v. N.L.R.B., 567 F.2d 588, 590 (3d Cir. 1977); ac-

cord, Long Island College Hospital v. N.L.R.B., 566

F.2d 833, 840 (2d Cir. 1977), cert. denied, 435 U.S.

996 (1978).

In this case an assessment of the propriety of the

Board’s unit determination must take place in the

context of the 1974 amendment extending coverage

of the Act to non-profit hospitals which had been

previously exempted by the Taft-Hartley Act. 61

Stat. 187 (1947); 29 U.S.C. § 152(2). The amend-

ment was prompted by the conclusion of Congress

that there was “no acceptable reason why 1,427,012

employees of . . . non-profit, non-public hospitals . . .

Should continue to be excluded from the coverage

and protections of the Act.” §S. Rep. No. 93-766, 93d

Cong., 2d Sess. (1974), reprinted in 2 [1974] USS.

Code Cong. & Ad. News 3946, at 3948. At the same

time, however, Congress was concerned that work

stoppages arising out of inter-union jurisdictional

disputes and the reluctance of many union members

to cross the picket lines of other unions posed serious

threats to uninterrupted patient care. See id. at

3948-52. Sensitivity to such dangers resulted in the

incorporation into the amendment of a number of

mandatory procedures, including strike notice re-

quirements for unions representing employees of

health care institutions. Id. at 3951. _

In addition, Senator Taft offered a provision which

would have prevented Board approval of more than

the following four bargaining units in any health

care institution: (1) professional employees, (2)

technical employees, (3) clerical employees, (4)

maintenance and service employees. S. 2292, 93d

Cong., lst Sess. (1973). While this specific limitation

on the Board’s discretion was not adopted, congres-

sional concern for the underlying problem was em-

bodied in a directive inserted in both the House and

Senate Reports accompanying the final version of the

bill:

Due consideration should be given by the Board

to preventing proliferation of bargaining units in

the health care industry. In this connection, the

Committee notes with approval the recent Board

decisions in Four Seasons Nursing Center, 208

NLRB No. 50, 85 LRRM 1093 (1974), and

Woodland Park Hospital, 205 NLRB No. 144, 84

LRRM 1075 (1973), as well as the trend toward

broader units enunciated in Extendicare of West

Virginia, 203 NLRB No. 170, 883 LRRM 1242

(1973) .?

1) By our reference to Extendicare, we do not

necessarily approve all of the holdings of that

decision.

S. Rep. No. 93-766, 93d Cong., 2d Sess. (1974), re-

printed in [1974] U.S. Code Cong. & Ad. News 3946,

at 3950; H.R. Rep. No. 93-1051, 93d Cong., 2d Sess.

7 (1974).

Senators Taft and Williams, co-sponsors of the

1974 amendment to the Act, explained this directive

during floor discussion on the bill. Senator Taft

stated:

. .. this is a sound approach and a constructive

compromise, as the Board should be permitted

some flexibility in unit determination cases. I

cannot stress enough, however, the importance of

great caution being exercised by the Board in

reviewing unit cases in this area. Unwarranted

unit fragmentation leading to jurisdictional dis-

putes and work stoppages must be prevented.

The administrative problems from a practical

operational viewpoint and labor relation [sic]

viewpoint must be considered by the Board on

this issue. Health-care institutions must not be

permitted to go the route of other industries,

particularly the construction trades, in this re-

gard.

120 Cong. Rec. 12944-45 (1974).

Ad CREE NESE Soli hin es Py Me aN bale

lent

He further observed that

every effort should be made to prevent a pro-

liferation of bargaining units in the health care

field and this was one of the central issues lead-

ing to agreement on this legislation. In this area

there is a definite need for the Board to exam-

ine the public interest in determining appropriate

bargaining units.

S. Rep. No. 93-766, 93d Cong., 2d Sess. at 255

(1974); accord 120 Cong. Rec. 22949 (1974) (re-

marks of Congressman Ashbrook).

The legislative history of the 1974 amendment

clearly reveals that Congress expected the Board,

when determining in its discretion an appropriate

bargaining unit in a health care institution, to give

substantial weight to the public interest in prevent-

ing unit fragmentation. Indeed, in Shriner’s Hos-

pital, 217 N.L.R.B. 806 (1975), decided soon after

enactment of the 1974 amendment, the Board seemed

to perceive the congressional mandate in precisely

that way.

In adopting the hospital amendments, Congress

recognized that labor relations in the health care

industry require special consideration due to the

uniqueness of that industry in terms of the ser-

vices it provides to the sick, infirm, or aged.

It is in the context of the peculiar nature of

the industry and the congressional mandate

against the proliferation of bargaining units that

we have weighed 4ll of the criteria traditionally

considered when making a unit determination

and have, on balance, concluded that it is proper

to place special significance on the high degree

of integration of operations performed through-

out a health care facility.

Were we to adopt the rationale applied by our

dissenting colleagues, we could be faced with re-

quests to find appropriate dozens of separate

units of employees performing diverse profes-

sional, technical, and service and maintenance

functions in an industry which, by its very

nature, requires great numbers of employees in a

myriad of classifications all ultimately involved

in providing patient car . We shall not do so,

because such an approach can only lead to an

undue fragmentation of bargaining units in the

health care industry which would totally frus-

trate congressional intent.

Id. at 808.

In later decisions, however, the Board has been

less solicitous of the directive of Congress.’ As a con-

*In Long Island College Hospital v. N.L.R.B., supra, 566

F.2d at 843, we observed that the Board’s decisions in this

area had fallen into disarray. Of the rulings there collected,

the Board had rejected bargaining units limited to mainten-

ance employees 11 times and approved them only four times

including the later reversed decision in West Suburban Hos-

pital, 224 N.L.R.B. 1349 (1976), enforcement denied, 570 F.2d

213 (7th Cir. 1978). Subsequently the Board has approved

separate maintenance units with increasing frequency. St.

Vincent’s Hospital and Medical Center of Toledo, 241 N.L.R.B.

No. 90 (1979) ; Alleghany General Hospital, 239 N.L.R.B. No.

104 (1978), application for enforcement pending (3d Cir.

Nos. 77-2090, 79-1085); see Southern Maryland Hospital

Center, 241 N.L.R.B. No. 91 (1979) (engineering and main-

tenance employees); Fresno Community Hospital, 241

N.L.R.B. No. 73 (1979) (engineering, electrical and mainten-

ance employees) ; Long Island College Hospital, 239 N.L.R.B.

No. 163 (1978) (engineering and maintenance employees).

)

sequence two circuit courts of appeals have denied

enforcement of bargaining orders requiring hospitals

to bargain with Board-certified units. In St. Vincent’s

Hostal v. N.L.R.B., supra, the Board had certified

a bargaining unit consisting of boiler operators and

three other maintenance workers in a hospital em-

ploying some 280 employees. The Third Circuit found

that in approving the unit the Board had relied only

on traditional industrial standards under which the

employees in the unit could have been found to possess

a sufficient separate community of interest to justify

certification.* The Court refused to approve the

Board’s bargaining order and stated that

. . . the factors of amount of contact between

workers, separate immediate supervision, and the

special skills of certain crafts must be put in

balance against the public interest in preventing

fragmentation in the health care field. 4 me-

chanical reliance on traditional patterns based

on licensing, supervision, skills and employee

joint activity simply does not comply with con-

gressional intent to treat this unique field in a

special manner.

Id. at 592.

Under the traditional community of interest test the

Board examines a number of factors including

the level of skill required to perform the bulk of the

maintenance work involved; the amount of production

employees’ work, if any the maintenance employees per-

form, and vice versa; the degree of interchange between

production and maintenance departments; the degree of

shared supervision; the location of the maintenance de-

partment.

Alleghany General Hospital, supra, 289 N.L.R.B. No. 104,

at 19 n.65.

10a

Even more pertinent to the case sub judice is the

Seventh Circuit’s refusal to approve the Board’s cer-

tification of a bargaining unit consisting solely of a

hospital’s maintenance personnel in N.L.R.B. v. West

Suburban Hospital, 570 F.2d 213 (1978). The court

was distressed by the apparently exclusive reliance of

the Board in making the unit determination on tradi-

tional criteria such as the amount of contact among

maintenance employees and the time spent by those

employees in the physical confines of the mainte-

nance department. The court faulted the Board’s

“mere lip-service mention of the Congressional ad-

monition as a factor to be taken into account, with-

out any indication from the Board as to the manner

in which its unit determination . . . implemented or

reflected that admonition.” Id. at 216.

In response to such judicial criticism, see also

Memorial Hospital of Roxborough v. N.L.R.B., 545

F.2d 351, 360-61 (3d Cir. 1976), the Board in

Alleghany General Hospital, 239 N.L.R.B. No. 104

(1978), application for enforcement pending (3d Cir.

Nos. 77-2090, 79-1085), re-examined at length the

legislative history of the 1974 amendment. Over a

vigorous dissent by member Penello, the Board con-

cluded that it gave sufficient deference to the con-

gressional admonition against undue proliferation of

bargaining units in health care institutions by apply-

ing to proposed hospital bargaining units the same

community of interest approach ordinarily utilized

for unit determinations in an industrial context. The

Board reasoned that the congressional directive was

lla

really meant to forestall the grouping of health care

institution employees by virtually every professional

interest or job classification as has occurred, for ex-

ample, in the construction industry. Id. at 9-11.

Since application of a community of interest test,

however, has not generally resulted in such fragmen-

tation of bargaining units in the industrial setting,

the Board concluded that the sole use of that stand-

ard for determining hospital bargaining units satis-

fied the mandate of the 1974 amendment. Id. at 19.

We disagree. Our reading of the legislative history

leads us to conclude that in the 1974 amendment

Congress was expressing concern not only that health

care institutions be spared the egregious unit prolif-

eration of the construction trades but that less ex-

treme unit fragmentation arising from application of

usual industrial unit criteria could also impede effec-

tive delivery of health care services. See N.L.R.B. v.

West Suburban Hospital, supra, 570 F.2d at 215; St.

Vincent’s Hospital v. N.L.R.B., supra, 567 F.2d at

592; Alleghany Hospital, supra, 239 N.L.R.B. No.

104 at 34 (member Penello, dissenting). See also

Memorial Hospital of Roxborough v. N.L.R.B., supra,

545 F.2d at 361. Thus, we hold along with our sister

circuits that when the Board makes a unit determi-

nation for health care institution employees, tradi-

tional community of interest factors “must be put in

balance against the public interest in preventing frag-

mentation in the health care field.” St. Vincent’s v.

N.L.R.B., supra, 567 F.2d at 592. The Board in its

12a

decision must specify “the manner in which its unit

determination . . . implement[s] or reflect[s] that

admonition... .” N.L.R.B. v. West Suburban Hos-

pital, supra, 570 F.2d at 216.* |

Such a course was not followed in the case before

us. The Board’s conclusion that maintenance depart-

ment employees should be represented by a separate

bargaining unit was premised solely on analysis of

traditional criteria; (1) lack of operational and func-

tional integration with other employees, (2) prevalent

functional integration within the maintenance depart-

ment itself, (3) skill and experience of the main-

nance employees, (4) supervision by a separate su-

pervisory hierarchy, and (5) generally higher wage

rates of maintenance employees in comparison to serv-

ice employees. The regional director, whose opinion.

was adopted without further elaboration by the

Board, ruled that the presence of the above factors

demonstrated a “community of interest sufficiently

separate and distinct from the service and other

Hospital employees to justify a separate maintenance

unit.” The decision’s single reference to the congres-

sional admonition against proliferation of bargaining

*In a recent opinion, N.L.R.B. v. St. Francis Hospital, 101

L.R.R.M. 2943 (1979), the United States Court of Appeals for

the Ninth Circuit refused enforcement of a Board order which

had certified a separate unit for registered nurses in a non-

profit hospital rather than an all professional unit. The court

was critical of the “per se” approach of the Board and re-

manded for an independent weighing of the factors involved

in that case in light of the congressional concerns we have

here set forth.

SLE lr MiP ADNAN Sai le iba ‘

ad PORE RI ROW VT nde

13a

units was the conclusory observation that the con-

gressional directive did “not preclude the ap-

propriateness of a maintenance unit.” This does not

comply with the congressional concern which we have

set forth in some detail and which requires an inde-

pendent evaluation of the factors in this particular

hospital. We therefore deny enforcement of the

Board’s order and remand for reconsideration con-

sistent with this opinion.

l4a

APPENDIX B

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Court House, in the City of New York,

on the fourth day of September, one thousand nine

hundred and seventy-nine.

Present: HON. WALTER R. MANSFIELD

HON. WILLIAM H. MULLIGAN

HON. WILLIAM H. TIMBERS

Circuit Judges

[Filed Sep. 4, 1979]

79-4044

NATIONAL LABOR RELATIONS BoarD, PETITIONER,

Vv.

MERCY HOSPITAL ASSOCIATION, RESPONDENT.

An application for enforcement of an order of the

National Labor Relations Board.

This cause came to be heard on a certified list of

items comprising the record of the National Labor

Relations Board and was argued by counsel.

Upon consideration thereof, it is hereby ordered,

adjudged and decreed that the application for en-

15a

forcement be and it hereby is denied and the action

be and it hereby is remanded to said Board for fur-

ther proceedings in accordance with the opinion of this

court with costs to be taxed against the petitioner.

A. DANIEL FUSARO

Clerk

/s/ Arthur Heller

BY: ARTHUR HELLER

Deputy Clerk

A true copy,

/s/ A. Daniel Fusaro

A. DANIEL FUSARO

Clerk

16a

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

Case 29-CA-6279

Mercy HosPITAL ASSOCIATION

and

INTERNATIONAL UNION OF OPERATING ENGINEERS,

LOCAL 30-30A, AFL-CIO

DECISION AND ORDER

Upon a charge filed on March 17, 1978, and an

amended charged filed on March 20, 1978, by Inter-

national Union of Operating Engineers, Local 30-

30A, AFL-CIO, herein called the Union, and duly

served on Mercy Hospital Association, herein called

Respondent, the General Counsel of the National

Labor Relations Board, by the Regional Director for

Region 29, issued a complaint on April 11, 1978,

against Respondent, alleging that Respondent had

engaged in and was engaging in unfair labor prac-

tices affecting commerce within the meaning of Sec-

tion 8(a)(5) and (1) and Section 2(6) and (7) of

the National Labor Relations Act, as amended. Copies

of the charge, complaint, and notice of hearing before

an Administrative Law Judge were dulv served on

the parties to this proceeding.

With respect to the unfair labor practices, the com-

plaint alleges in substance that on December 20, 1977,

— = =——té—«~™Y

17a

following a Board election in Case 29-RC-3988, the

Union was duly certified as the exclusive collective-

bargaining representative of Respondent’s employees

in the unit found appropriate and that, commencing

on or about February 24, 1978, and at all times

thereafter, Respondent has refused, and continues to

date to refuse, to bargain collectively with the Union

as the exclusive bargaining representative, although

the Union has requested and is requesting it to do so.

On April 19, 1978, Respondent filed its answer to the

complaint admitting in part, and denying in part, the

allegations in the complaint.

On August 9, 1978, counsel for the General Counsel

filed directly with the Board a Motion for Summary

Judgment. Subsequently, on August 25, 1978, the

Board issued an order transferring the proceeding

to the Board and a Notice To Show Cause why the

General Counsel’s Motion for Summary Judgment

should not be granted. Respondent thereafter filed a

response to Notice To Show Cause.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the Na-

1 Official notice is taken of the record in the representation

proceeding, Case 29-RC-3988, as the term “record” is defined

tn Secs. 102.68 and 102.69(g) of the Board’s Rules and Regu-

lations, Series 8, as amended. See LTV Electrosystems, Inc.,

166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968) ;

Golden Age Beverage Co., 167 NLRB 151 (1967), enf’d. 415

F.2d 26 (C.A. 5, 1969) ; Intertype Co. v. Penello, 269 F.Supp.

573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967),

enfd. 397 F.2d 91 (C.A. 7, 1968) ; Sec. 9(d) of the NLRA, as

amended.

18a

tional Labor Relations Board has delegated its au-

thority in this proceeding to a three-member panel.

Upon the entire record in this proceedinge, the

Board makes the following:

Ruling on the Motion for Summary Judgment

In its opposition to the General Counsel’s Motion

for Summary Judgment and answer to the complaint,

Respondent admits that it has refused to bargain with

the Union, but asserts that the Union does not repre-

sent the Respondent’s employees in a unit appropriate

for purposes of collective bargaining. It requests that

the Board review its previous holdings that separate

hospital maintenance units are appropriate. Counsel

for the General Counsel argues that there are no mat-

ters warranting a hearing, because the issues con-

cerning the Union’s certification were raised and

determined in the representation case. We agree with

the General Counsel.

Our review of the record herein, including the rec-

ord in Case 29—RC—3988, indicates that the Re-

gional Director’s Decision and Direction of Election

was issued on November 11, 1977, Respondent re-

quested review of the Decision and Direction, con-

tending the separate hospital maintenance unit ap-

proved by the Regional Director was inappropriate.

The Board denied the request for review on December

7, 1977, and the election was held on December 8,

1977. The tally of ballots showed 18 votes cast for

the Union and 3 against. No objections were filed.

19a

It is well sentled that in the absence of newly dis-

covered or previously unavailable evidence or special

circumstances a respondent in a proceeding alleging

a violation of Section 8(a)(5) is not entitled to

relitigate issues which were or could have been liti-

gated in a prior representation proceeding.’

All issues raised by Respondent in this proceeding

were or could have been litigated in the prior repre-

sentation proceeding, and Respondent does not offer

to adduce at a hearing any newly discovered or previ-

ously unavailable evidence, nor does it allege that any

special circumstances exist herein which would re-

quire the Board to reexamine the decision made in

the representation proceeding. We therefore find that

Respondent has not raised any issue which is properly

litigable in this unfair labor practice proceeding.

Accordingly, we grant the Motion for Summary Judg-

ment.

On the basis of the entire record, the Board makes

the following:

Findings of Fact

I. The Business of Respondent

Respondent Mercy Hospital Association is a New

York nonprofit corporation with its principal place

of business in Rockville Centre, New York, where it

is engaged in the operation of a nonprofit hospital.

During the past 12 months, a representative period,

2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146,

162 (1941) ; Rules and Regulations of the Board, Secs. 102.67

(f) and 102.69(c).

20a

Respondent received in excess of $250,000 in gross

revenues for providing health care and related serv-

ices, and purchased and caused to be transported and

caused to be transported and delivered to its place of

business in interstate commerce directly from States

of the United States other than the State of New

York.

We find, on the basis of the foregoing, that Re-

spondent is, and has been at all times material herein,

an employer engaged in commerce within the mean-

ing of Section 2(6) and (7) of the Act, and that it

will effectuate the policies of the Act to assert juris-

diction herein.

II. The Labor Organization Involved

International Union of Operating Engineers, Local

30-30A, AFL-CIO, is a labor organization within the

meaning of Section 2(5) of the Act.

III. The Unfair Labor Practices

A. The Representation Proceeding

1. The unit

The following employees of Respondent constitute

a unit appropriate for collective-bargaining purposes

within the meaning of Section 9(b) of the Act:

All full-time and regular part-time maintenance

and engineering employees, including mainte-

nance workers, maintenance mechanics, elec-

tricians, gardeners, groundsmen, carpenters,

painter/plasterers, plumbers, boilermen, watch

21a

engineers, and chauffeurs employed by the Em-

ployer at its Rockville Centre, New York, loca-

tion, excluding all other employees, guards and

all supervisors as defined in the Act.

2. The certification

On December 8, 1977, a majority of the employees

of Respondent in said unit, in a secret-ballot election

conducted under the supervision of the Regional Di-

rector for Region 29, designated the Union as their

representative for the purpose of collective bargain-

ing with Respondent. The Union was certified as the

collective-bargaining representative of the employees

in said unit on December 20, 1977, and the Union

continues to be such exclusive representative within

the meaning of Section 9(a) of the Act.

B. The Request To Bargain and

Respondent’s Refusal

Commencing on or about February 2, 1978, and

at all times thereafter, the Union has requested Re-

spondent to bargain collectively with it as the exclu-

sive collective-bargaining representative of all the

employees in the above-described unit. Commencing

on or about February 24, 1978, and continuing at

all times thereafter to date, Respondent has refused,

and continues to refuse, to recognize and bargain

with the Union as the exclusive representative for

collective barguining of all employees in said unit.

Accordingly, we find that Respondent has, since

February 24, 1978, and at all times thereafter, re-

fused to bargain collectively with the Union as the

22a

exclusive representative of the employees in the ap-

propriate unit, and that, by such refusal, Respondent

has engaged in and is engaging in unfair labor prac-

tices within the meaning of Section 8(a)(5) and (1)

of the Act.

IV. The Effect of the Unfair Labor Practices

Upon Commerce

The activities of Respondent set forth in section

III, above, occurring in connection with its opera-

tions described in section I, above, have a colse, inti-

mate, and substantial relationship to trade, traffic,

and commerce among the several States and tend to

lead to labor disputes burdening and obstructing

commerce and the free flow of commerce.

V. The Remedy

Having found that Respondent has engaged in and

is engaging in unfair labor practices within the mean-

ing of Section 8(a) (5) and (1) of the Act, we shall

order that it cease and desist therefrom, and, upon

request, bargain collectively with the Union as the

exclusive representative of all employees in the ap-

propriate unit, and, if an understanding is reached,

embody such understanding in a signed agreement.

In order to insure that the employees in the appro-

priate unit will be accorded the services of their

selected bargaining agent for the period provided

by law, we shall construe the initial period of certifi-

cation as beginning on the date Respondent com-

mences to bargain in good faith with the Union as

wi eaene: P 4

23a

the recognized bargaining representative in the ap-

propriate unit. See Mar-Jac Poultry Company, Inc.,

186 NLRB 785 (1962); Commerce Company d/b/a

Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328

F.2d 600 (C.A. 5, 1964), cert. denied 879 U.S. 817

(1964); Burnett Construction Company, 149 NLRB

1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10,

1965).

The Board, upon the basis of the foregoing facts

and the entire record, makes the following:

Conclusions of Law

1. Mercy Hospital Association is an employer en-

gaged in commerce within the meaning of Section

2(6) and (7) of the Act. |

2. International Union of Operating Engineers,

Local 30-30A, AFL-CIO, is a labor organization with-

in the meaning of Section 2(5) of the Act.

3. All full-time and regular part-time maintenance

and engineering employees including maintenance

workers, maintenance mechanics, electricians, garden-

ers, groundsmen, carpenters, painter/plasters, plumb-

ers, boilermen, watch engineers, and chauffeurs em-

ployed by the Employer at its Rockville Centre, New

York, location, excluding all other employees, guards

and all supervisors as defined in the Act, constitute

a unit appropriate for the purposes of collective bar-

gaining within the meaning of Section 9(b) of the

Act.

4. Since December 20, 1977, the above-named labor

organization has been and now is the certified and

24a

exclusive representative of all employees in the afore-

said appropriate unit for the purpose of collective

bargaining within the meaning of Section 9(a) of

the Act.

5. By refusing on or about February 24, 1978, and

at all times thereafter, to bargain collectively with

the above-named labor organization as the exclusive

bargaining representative of all the employees of

Respondent in the appropriate unit, Respondent has

engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) of the Act.

6. By the aforesaid refusal to bargain, Respondent

has interfered with, restrained, and coerced, and is

interfering with, restraining, and coercing, employ-

ees in the exercise of the rights guaranteed to them

in Section 7 of the Act, and thereby has engaged in

and is engaging in unfair labor practices within the

meaning of Section 8(a)(1) of the Act.

7. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Act, as amended, the National Labor Rela-

tions Board hereby orders that the Respondent,

Mercy Hospital Association, Rockville Centre, New

York, its officers, agents, successors, and assigns,

shall:

nt CAN

At 5 NOI nl Att a ene wt

we aa idan oa ast ts rte

nvery nett vate Coe sine tnt teint Anntnt Ms ines <tr st NO A Oe dee ti ae

po tale watts a

25a

1. Cease and desist from:

(a) Refusing to bargain collectively concerning

rates of pay, wages, hours, and other terms and con-

ditions of employment with International Union of

Operating Engineers, Local 30-30A, AFL-CIO, as

the exclusive bargaining representative of its em-

ployees in the following appropriate unit:

All full-time and regular part-time mainte-

nance and engineering employees, including

maintenance workers, maintenance mechanics,

electricians, gardeners, groundsmen, carpenters,

painter/plasterers, plumbers, boilermen, watch

engineers and chauffeurs employed by the Em-

ployer at its Rockville Centre, New York loca-

tion, excluding all other employees, guards, and

all supervisors as defined in the Act.

(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action which the

Board finds will effectuate the policies of the Act:

(a) Upon request, bargain with the above-named

labor organization as the exclusive representative of

ail employees in the aforesaid appropriate unit with

respect to rates of pay, wages, hours, and other terms

and conditions of employment, and, if an understand-

ing is reached, embody such understanding in a

signed agreement.

26a

(b) Post at Rockville Centre, New York, facility

copies of the attached notice marked “Appendix.” *

Copies of said notice, on forms provided by the Re-

gional Director for Region 29, after being duly signed

by Respondent’s representative, shall be posted by

Respondent immediately upon receipt thereof, and be

maintained by it for 60 consecutive days thereafter,

in conspicuous places, including all places where no-

tices to employees are customarily posted. Reasonable

steps shall be taken by Respondent to insure that

said notices are not altered, defaced, or covered by

any other material.

writing, within 20 days from the date of this Order,

what steps have been taken to comply herewith.

Dated, Washington, D.C. September 29, 1978.

John H. Fanning, Chairman

Howard Jenkins, Jr., Member

Betty Southard Murphy, Member

NATIONAL LABOR RELATIONS BOARD

[SEAL]

3 In the event that this Order is enforced by a Judgment of

a United States Court of Appeals, the words in the notice

reading “POSTED BY ORDER OF THE NATIONAL LABOR

RELATIONS BOARD” shall read “POSTED PURSUANT TO

A JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

Aes ne a ee BW oi Nabi 0

27a

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT refuse to bargain collectively con-

cerning rates of pay, wages, hours, and other terms

and conditions of employment with International

Union of Operating Engineers, Local 30-30A, AFL-

CIO, as the exclusive representative of the employ-

ees in the bargaining unit described below.

WE WILL NOT in any like or related manner

interfere with, restrain, or coerce our employees in

the exercise of the rights guaranteed them by Sec-

tion 7 of the Act.

WE WILL, upon request, bargain with the above-

named Union, as the exclusive representative of all

employees in the bargaining unit described below,

with respect to rates of pay, wages, hours, and other

terms and conditions of employment, and, if an. un-

derstanding is reached, embody such understanding

in a signed agreement. The bargaining unit is:

All full-time and regular part-time mainte-

nance and engineering employees, including

maintenance workers, maintenance mechanics,

electricians, gardeners, groundsmen, carpenters,

painter/plasterers, plumbers, boilermen, watch

engineers and chauffeurs employed by the Em-

ployer at its Rockville Centre, New York, loca-

28a

tion, excluding all other employees, guards and

all supervisors as defined in the Act.

Mercy HOSPITAL ASSOCIATION

(Employer)

Dated. By

(Representative) (Title)

This is an official notice and must not be defaced

by anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material. Any ques-

tions concerning this notice or compliance with its

provisions may be directed to the Board’s Office, 16

Court Street, Fourth Floor, Brooklyn, New York

11241, Telephone 212-596-7709.

29a

APPENDIX D

UNITED STATES OF AMERICA

BEFORE

THE NATIONAL LABOR RELATIONS BOARD

REGION 29

Case No. 29-RC-3988

MERCY HOSPITAL ASSOCIATION, EMPLOYER

and

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 30-30A, AFL-CIO, PETITIONER !

DECISION AND DIRECTION OF ELECTION

Upon a petition duly filed under Section 9(c) of

the National Labor Relations Act, as amended, a

hearing was held before Owen Epstein, a hearing

officer of the National Labor Relations Board.

Pursuant to the provisions of Section 3(b) of the

Act, the Board has delegated its authority in this

proceeding to the undersigned.

Upon the entire record in this proceeding,- the

undersigned finds:

1. The hearing officer’s rulings made at the hear-

ing are free from prejudicial error and are hereby

affirmed.

2. The Employer is engaged in commerce within

‘ the meaning of the Act and it will effectuate the pur-

poses of the Act to assert jurisdiction herein.

1The names of the parties appear as amended at the

hearing.

30a

3. The labor organization involved claims to repre-

sent certain employees of the Employer.

4. A question affecting commerce exists concern-

ing the representation of certain employees of the

Employer within the meaning of Section 9(c) (1)

and Section 2(6) and (7) of the Act.

5. The Petitioner seeks to represent a unit of all

full-time and regular part-time maintenance and en-

gineering employees, including maintenance workers,

maintenance mechanics, electricians, gardeners,

groundsmen, carpenters, painting/plasterers, plumb-

ers, boiler men, watch engineers and chauffeurs em-

ployed by the Employer at its premises located at

100 North Village Avenue, Rockville Centre, New

York, excluding all other employees, guards and

supervisors as defined in the Act.2 The Petitioner

contends that the petitioned-for employees constitute

a distinct group based upon similarity of experience,

skill, wages and working conditions, thus justifying

separate representation. The Employer, on the other

hand contends that the unit sought is inappropriate

and that the only appropriate unit is one consisting

of a hospitalwide service and maintenance unit.

The hospital complex consists of three building com-

ponents: the Molloy Pavilion; the Kellenberg Pavilion ;

and the Women’s Pavilion. All are connected by cor-

ridors or a tunnel. The hospital is a 390 bed institu-

tion which employs 1,287 employees. There is no

history of collective bargaining for any of the Em-

ployer’s employees revealed in the record.

2 The unit appears as amended at the hearing.

sla

The hospital, a non-profit facility, is divided into

32 departments which are administered by an ad-

ministrator, four assistant administrators and sepa-

rate department heads for each of the various depart-

ments, except for very small departments which re-

port directly to an assistant administrator. The

maintenance and engineering department, which has

the title of the Building, Plant and Ground Mainte-

nance department is further divided into six shops:

(1) the carpentry shop; (2) the paint shop; (8) the

plumbing shop; (4) the electrical shop; (5) the boiler

room shop; and (6) the grounds crew and chauffeur.

The carpentry, electrical and boiler room shops are

each headed by a leadman.*

The Employer has the following employees and

classifications within the maintenance department:

(1) carpentry shop—one chief carpenter, one senior

carpenter and one maintenance carpenter ; * (2) paint

shop—one painter/plasterer; (3) plumbing shop—

one maintenance mechanic and one maintenance

plumber; (4) electrical shop—one chief electrician

and two maintenance electricians; (5) boiler room—

one vhief watch engineer, one assistant chief watch

engineer, two senior watch engineers and one boiler

attendant; (6) grounds crew—one gardener, one

groundsman and one chauffeur. Thus, the requested

unit includes 23 employees in 17 job classifications.

8 The Petitioner and the Employer agree that the foreman

carpenter, the chief electrician and the chief watch engineer

are not supervisors within the meaning of the Act.

4 At the time of the hearing the maintenance carpenter

classification was vacant.

32a

The maintenance department is under the overall

supervision of Henry Smith, the department head

who possesses the title of Maintenance Coordinator.

Everyone in the maintenance department is under

his direct supervision except the senior carpenter, who

reports to the chief carpenter, the two maintenance

electricians, who report to the chief electrician and

the assistant chief watch engineer, and the boiler

attendant, who report to the chief watch engineer.

The foreman carpenter, the chief electrician and the

chief watch engineer all report to the department

head. The Personnel Department forwards employ-

ment applications to the department head for con-

sideration and reviews the department head’s deci-

sions with respect to hiring and firing employees to

insure compliance with hospital procedures. However,

with regard to hiring, firing, disciplinary action, pro-

motions, vacation scheduling and time off as it relates

to employees within the maintenance department, the

department head, Smith, possesses the operative au-

thority. Furthermore, the record reveals that it is

the department head who sets the qualification re-

quirements for all positions within the department.

Additionally, the department head consults with the

various shop chiefs with respect to new hires.

The record reveals that the employees in the main-

tenance department are highly skilled employees. Ac-

cording to the Employer’s job descriptions, the chief

watch engineer and the assistant chief watch engi-

neer must hold licenses. Although not required, the

chief electrician also holds a license. The record fur-

ere ere nen Sere

83a

ther shows that all of the Employer’s maintenance

employees were considered for employment and hired

on the basis of their past experience in the jobs

sought. For example, the painter/plasterer is a jour-

neyman plasterer and the senior carpenter was em-

ployed as a carpenter prior to his employment with

the Employer.

Consistent with the Employer’s high standards for

entry into the maintenance department, there has

been insignificant transfer between employees in the

unit sought and those outside the unit. Although the

Employer has implemented a job-posting system, the

record discloses only two transfers into the mainte-

nance department and no transfers out of the main-

tenance department.® |

The maintenance department is charged with the

responsibility of maintaining the physical integrity

of the hospital grounds and buildings. Although cer-

tain specialized maintenance work is contracted to

outside contractors, for example, repair and mainte-

nance work on sprinkler systems, patient monitoring

equipment, such as EKG and X-ray machines; ele-

vators and escalators; the maintenance employees

themselves also perform major repair work, such as

replacing main stearn valves on the high-pressure

steam boilers, and service complex and sophisticated

equipment, such as the air-conditioning system, incu-

5 One housekeeping employee transferred into the chauf-

feur’s position and another housekeeping employee, who had

considerable carpentry, electrical and plumbing experience,

also transferred into the department.

34a

bators and “bird” machines. Smith testified that the

maintenance employees possess the required skills to

perform much of the work that is contracted out but

lack the necessary tools to do these jobs.

The maintenance department employees perform

such highly skilled work as building and hanging

doors, making and installing cabinets and shelving,

bathroom layouts, welding and soldering jobs, elec-

trical work done in compliance with various electrical

codes, chemical analysis tests on boiler water and are

also responsible for the operation and maintenance

of the high-pressure steam boilers and related equip-

ment. Furthermore, Smith testified that he calls upon

the senior-carpenter to give job and material esti-

mates and to solicit prices from vendors.

The wage rates received by the maintenance per-

sonnel reflect their specialized skill and experience.

The record reveals that they are generally in higher

wage levels than most service employees and the

maintenance department also has a generally higher

rate of progression within each level, and a higher

rate of pay at both the bottom and the top levels than

the service department. The Employer has main-

tained separate pay scales for the service department

and maintenance department since 1971 or 1972

when, as the result of a wage evaluation, the Em-

ployer increased the wages of the maintenance em-

ployees but did not accord increases to the service

department employees.

With the exception of the boiler room personnel,

the maintenance employees work throughout the hos-

eee Oe eS ; an.

ee eS ee Pp

35a

pital. They respond to work requests made by other

departments, by contacting the Maintenance Coordi-

nator who then makes the assignment, either himself

or through a shop chief, and also perform regularly

scheduled preventive maintenance work on various

pieces of equipment in all areas of the hospital.

Smith testified that maintenance employees work in

conjunction with other hospital employees unloading

trucks; during disaster and fire drills; and in certain

flooding situations; for example, when stopped up

toilets overflow requiring clean up measures. The

record also reveals that the chauffeur makes deliv-

eries for various other departments and the grounds-

man, and on occasion some other maintenance em-

ployees, work together with the housekeeping and

dietary employees in setting up tables, chairs and

related equipment for the annual Christmas party,

picnic and fair. The record reveals that other than

the above occasions, the maintenance employees do not

work jointly with service or other hospital employees.

The maintenance employees spend the vast majority

of their time performing their specialities in tasks

which are usually one person jobs.

Integration of operation and function is prevalent

within the maintenance department. In performing

normal maintenance duties, the maintenance depart-

ment employees are in frequent contact with one

another; for example, the senior maintenance and

maintenance workers relieve the boiler personnel dur-

ing lunch breaks and are from time to time called

upon to assist the assistant chief watch engineer;

36a

the electricians and plumbers perform repair and

maintenance work in the boiler room; the senior

maintenance workers assist the electricians, plumb-

ers and painter/plasterer in all areas of the hospital;

and all maintenance employees work together on

rennovation jobs. Furthermore, the maintenance de-

partment time cards are grouped by department.

The maintenance employees are all headquartered on

the basement floor of the hospital but in separate

shops. In addition to contact resulting from work

performed together and from close proximity of the

various maintenance shops, the maintenance depart-

ment employees have separate lockers, a department

Christmas party in addition to the hospital-wide

Christmas party and a separate “Sunshine” fund

kept for the purpose of sending cards or gifts to all

or retiring maintenance employees. Thus, these occa-

Sions provide further opportunity for intra-depart-

mental contact.

The primary functions of the groundsman and the

gardener consist of keeping the grounds clean of

debris, cutting grass, planting flowers and removing

snow. However, when not so engaged, especially dur-

ing inclement weather, they assist in maintaining

equipment and also assist the senior maintenance

workers in their duties. Furthermore, the chauffeur

is required to maintain and make minor repairs on

his vehicle, and the gardener and the groundsman are

required to maintain and repair a tractor and truck,

respectively.

ne Se ea en

87a

Promotional opportunities within the maintenance

department are encouraged by the Employer. For

example, the senior watch engineers and the mainte-

nance workers can, through on-the-job training, be-

come the assistant chief watch engineer and senior

maintenance workers, respectively, and this has oc-

curred. In fact, the present assistant chief watch

engineer was hired initially by the Employer as a

maintenance mechanic.

All of the Employer’s employees, including the

petitioned-for maintenance employees, share a num-

ber of basic working conditions and benefits, includ-

ing, inter alia, paid holidays, a 37 and one half hour

work week, an hourly pay rate, insurance coverage,

access to the employee cafeteria, free parking, vaca-

tions, grievance procedure and orientation program.

The maintenance department employees share two

time clocks with other hospital employees and the

Employer also has a centralized personnel policy

which is administered by the personnel department

and applies to all employees.

In determining the appropriateness of a separate

maintenance and engineering department unit in

health care institutions, the Board applies its tradi-

tional unit criteria, i.e., mutuality of interest in

wages, benefits, and working conditions; commonality

of skills and supervision; frequency of contact with

other employees; interchange and functional integra-

tion; and area practice. The Congressional admoni-

tion against proliferation of bargaining units in the

health care industry does not preclude the appropri-

38a

ateness of a maintenance unit.® In view of the main-

tenance employees’ lack of operational and functional

integration with other employees,’ the prevalent func-

tional integration within the maintenance department

itself; * their skill and experience in their respective

jobs;°* their supervision by a separate supervisory

hierarchy; *° and their generally higher wage rates

than those of service employees, I am persuaded, based

on the foregoing and the record as a whole, that the

employees in the petitioned-for maintenance and en-

gineering unit possess a community of interest suffi-

ciently separate and distinct from the service em-

ployees; and the other departments of the Employer

to justify placing them in a separate unit.”

5. Accordingly, I find that the following employ-

ees of the Employer constitute a unit appropriate for

the purpose of collective bargaining within the mean-

ing of Section 9(b) of the Act:

All full-time and regular part-time maintenance

and engineering employees, including maintenance

® The Jewish Hospital Association of Cincinnati, d/b/a

Jewish Hospital of Cincinnati, 223 NLRB 614.

7 St. Francis Hospital Medical Center, 2283 NLRB 1451 at

1453.

8 West Suburban Hospital, 224 NLRB 1349.

® Hebrew Rehabilitation Center for the Aged, 230 NLRB

No. 35.

10 Sinai Hospital of Detroit, Inc., 226 NLRB No. 61.

11 See also Eskaton American River Healthcare Center, 225

NLRB 755.

39a

workers, maintenance mechanics, electricians, gard-

ners, groundsmen, carpenters, painter/plasters,

plumbers, boiler men, watch engineers and chauf-

feurs employed by the Employer at its Rockville

Centre, New York location, excluding all other em-

ployees, guards and supervisors as defined in the Act.

DIRECTION OF ELECTION

An election by secret ballot shall be conducted by

the undersigned among the employees in the units

found appropriate at the time and place set forth in

the notice of election to be issued subsequently sub-

ject to the Board’s Rules and Regulations. Eligible

to vote are those in the units who were employed

during the payroll period ending immediately pre-

ceding the date of this Decision, including employees

who did not work during that period because they

were ill, on vacation, or temporarily laid off. Also

eligible are employees engaged in an economic strike

which commenced less than 12 months before the elec-

tion date and who retained their status as such dur-

ing the eligibility period and their replacements.

Those in the military service of the United States

may vote if they appear in person at the polls. In-

eligible to vote are employees who have quit or been

discharged for cause since the designated payroll

period, employees engaged in a strike who have been

discharged for cause since the commencement thereof

and who have not been rehired or reinstated before

the election date and employees engaged in an eco-

nomic strike which commenced more than 12 months

40a

before the election date and who have been perma-

nently replaced. Those eligible shall vote whether or

not they desire to be represented for collective-

bargaining purposes by International Union of Oper-

ating Engineers, Local 30-30A, AFL-CIO.

LIST OF VOTERS

In order to assure that all eligible voters may have

the opportunity to be informed of the issues in the

exercise of the statutory right to vote, all parties to

the election should have access to a list of voters and

their addresses which may be used to communicate

with them. Excelsior Underwear, Inc., 156 NLRB

1236 (1966); N.L.R.B. v. Wyman-Gordon Company,

394 U.S. 759 (1969). Accordingly, it is hereby di-

rected that within 7 days of the date of this Decision,

3 copies of an election eligibility list, containing the

names and addresses of all the eligible voters, shall be

filed by the Employer with the undersigned who shall

make the list available to all parties to the election.

In order to be timely filed, such list must be received

in the Regional Office, 16 Court Street, Brooklyn,

New York 11241 on or before November 18, 1977. No

extension of time to file this list may be granted, nor

shall the filing of a request for review operate to

stay the filing of such list except in extraordinary cir-

cumstances. Failure to comply with this requirement

shall be grounds for setting aside the election when-

ever proper objections are filed.

Pe ee eee Peay

eee

PP RA PE Pe OPT eT 5

4la

RIGHT TO REQUEST REVIEW

Under the provisions of Section 102.67 of the

Board’s Rules and Regulations, a request for review

of this Decision may be filed with the National Labor

Relations Board, addressed to the Executive Secre-

tary, 1717 Pennsylvania Avenue, NW., Washington,

D.C. 20570. This request must be received by the

Board in Washington by November 25, 1977.

Dated: November 11, 1977 at Brooklyn, New York.

/8s/ Samuel M. Kaynard

SAMUEL M. KAYNARD

Regional Director, Region 29

National Labor Relations Board

16 Court Street

Brooklyn, New York 11241

42a

APPENDIX E

UNITED STATES OF AMERICA

BEFORE

THE NATIONAL LABOR RELATIONS BOARD

Case 6—CA—8026

ALLEGHENY GENERAL HOSPITAL

and

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 95-95A, AFL-CIO

SUPPLEMENTAL DECISION AND ORDER

On July 19, 1977, a three-member panel of the

Board issued a Decision and Order in the above-

entitled proceeding,’ finding (1) it was proper to

extend comity to the certification by the Pennsylva-

nia Labor Relations Board (PLRB) of the Charging

Party as the bargaining representative of Respond-

ent’s maintenance department employees; (2) Re-

spondent, on and after December 4, 1974, unlawfully

refused to bargain with the Charging Party; and

(3) the strike of January 20, 1975, by Respondent’s

maintenance department employees was caused by

that unlawful refusal and was therefore an unfair

labor practice strike. A bargaining order was issued

and the strikers were ordered reinstated as unfair

labor practice strikers. Subsequently, the full Board

' 1230 NLRB 954 (Member Penello dissenting).

43a

decided to reconsider this Decision and Order in light

of the recent decisions by the United States Court

of Appeals for the Third District in Memorial Hos-

pital of Roxborough v. N.L.R.B.2 and St. Vincent’s

Hospital v. N.L.R.B.*

In Memorial Hospital of Roxborough v. N.L.R.B.,

the court held that the extension of comity to a PLRB

certification where, as here, the parties had contested

the underlying unit determination was contrary to

the Act. We respectfully disagree with that holding

and believe that the circumstances of this case dem-

onstrate why the Board’s policy regarding comity is

consistent with the Act.

In St. Vincent’s Hospital v. N.L.R.B., the court de-

cided that the legislative history of the 1974 amend-

ments to the Act* specifically the statement in the

accompanying Senate and House committee reports

that “[d]Jue consideration should be given by the

Board to preventing proliferation of bargaining units

in the health care industry” * and the explanations of

2545 F.2d 351 (1976).

5 567 F.2d 588 (1977).

* Prior to 1974, Sec. 2(2) excluded “any corporation or

association operating a hospital, if no part of the net earnings

inures to the benefit of any private shareholder or individual”

from the statutory definition of “employer.” The 1974 amend-

ments eliminated this exemption. Public Law 93-360, 88 Stat.

395 (effective August 25, 1974).

5S. Rept. 93-766, 98d Cong. 2d Sess. 5 (1974), “Legislative

History of the Coverage of Nonprofit Hospitals Under the

National Labor Relations Act, 1974” (hereinafter Leg. Hist.)

at 12; H. Rept. 93-1501, 93d Cong. 2d Sess. 6-7 (1974), Leg.

Hist., swpra at 274-275. .

44a

it offered by certain sponsors of the amendments, pre-

cluded the Board from finding appropriate separate

units of maintenance and powerhouse employees at

health care institutions. For support, the court cited

the Board’s decisions in Shriners Hospitals for

Crippled Children® and The Jewish Hospital Asso-

ciation of Cincinnati d/b/a Jewish Hospital of Cin-

cinnati.' After carefully reconsidering the legislative

history of the 1974 amendments, we have concluded,

that, with all due respect to the court, Congress did

not intend to prohibit such units. Further, in Shrin-

ers and Jewish Hospital of Cincinnati, majorities of

the Board agreed that legislative history did not do

so. Also in its decision in St. Vincent’s Hospital v.

6217 NLRB 806 (1975).

7223 NLRB 614 (1976).

8 The court stated in St. Vincent’s Hospital v. N.L.R.B., 567

F.2d at 592:

The Board rejected a petition for representation of five

stationary engineers in Shriners Hospitals. Although it

recognized that under ordinary circumstances similar

units had been approved in other industries, the Board

stated that ordinary circumstances do not exist in the

hospital field. The majority concluded:

“It is in the context of the peculiar nature of the in-

dustry and the congressional mandate against the pro-

liferation of bargaining units that we have weighed all

of the criteria traditionally considered when making a

unit determination and have, on balance, concluded that

it is proper to place special significance on the high degree

of integration of operations performed throughout a

health care facility.

Were we to adopt the rationale applied by our dissent-

ing colleagues, we could be faced with requests to find

45a

N.L.R.B., the court went on to conclude that the leg-

islative history of the 1974 amendments also pre-

appropriate dozens of separate units of employees per-

forming diverse professional, technical, and service and

maintenance functions in an industry which, by its very

nature, requires great numbers of employees in a myriad

of classifications all ultimately involved in providing pa-

tient care. We shall not do so, because such an approach

can only lead to an undue fragmentation of bargaining

units in the health care industry which would totally

frustrate congressional intent.” 217 NLRB 806, 808

(1975).

Subsequently, in Jewish Hospital Association, 223 NLRB

614 (1976), the Board rejected a bargaining unit com-

posed only of engineering employees and approved one

composed of all maintenance and service personnel.

We consider these statements to be correct expressions

of the law properly recognizing the considerations to be

applied by the Board. We are unable to reconcile the de-

cisions and their rationale with the result reached in the

case sub judice.

The Shriners majority the court refers to consisted of Mem-

bers Kennedy and Penello. Then Chairman Murphy and then

Member Fanning, in their dissent, and Member Jenkins, in his

concurrence, specifically rejected the rationale quoted above

by the court. Member Jenkins joined Members Kennedy and

Penello in dismissing the petition, but only because he found

the unit inappropriate under his view of the facts of that

case. Chairman Murphy and Member Fanning would have

found the petitioned-for unit appropriate.

In Jewish Hospital of Cincinnati, the entire Board, includ-

ing Member Penello (Member Kennedy’s term had since ex-

pired), agreed that the legislative history did not bear all

maintenance units at health care institutions. Members Jenk-

ins, Penello, and Walther decided, however, that on the par-

ticular facts of that case a separate maintenance unit was

not warranted. That case, however, cannot be read as holding

that as a matter of law all hospital maintenance units are

precluded by the 1974 amendments.

46a

cluded the Board from relying on its traditional com-

munity-of-interest criteria in making unit determi-

nations in the health care industry.’ On this point,

too, we must respectfully disagree.

That Congress did not intend to preclude the Board

from finding appropriate units limited to hospital

maintenance departments is, we believe, clear. In

Jewish Hospital of Cincinnati, the entire Board

agreed in this point: ”°

As we have recognized and continue to recognize,

our consideration of the issues related to the

composition of bargaining units in the health

care industry must necessarily take place against

the background of avoidance of undue prolifera-

tion. However, Congress left the matter of the

® The court stated:

The Board decided to apply traditional standards which

recognize that units of licensed boilermen may constitute

separate appropriate units.

The legislative history of the health care amendments,

however, makes it quite clear that Congress directed the

Board to apply a standard in this field that was not

traditional... .

* * cd ca

A mechanical reliance on traditional patterns based on

licensing, supervision, skills and employee joint activity

simply does not comply with congressional intent to treat

this unique field in a special manner. [567 F.2d at 592.]

_ © 223 NLRB at 616.

47a

determination of appropriate units to the Board,

and the desire for nonproliferation does not, in

our judgment, necessarily preclude our granting

maintenance units in the health care area. Con-

gress was aware that the Board has sometimes

found that a separate maintenance unit is ap-

propriate if the maintenance employees possess

a community of interest sufficiently separate and

distinct from the broader community of interest

sufficiently separate and distinct from the broad-

er community of interest they share with other

employees to warrant their inclusion in a sepa-

rate unit. Yet, it did nothing to preclude our

granting such units. Congress in fact rejected

Senator Taft’s suggestion that maintenance em-

ployees should always be combined with service

employees into a single unit.”

11'S. 2292, 93d Cong., 1st Sess. (1973), introduced earlier by

Senator Taft, would have amended Sec. 9(b) to provide:

[T]he Board shall not decide that any unit in a health

care institution is appropriate for purposes of collective

bargaining which (i) includes professional employees un-

less all of the professional employees employed by such

institution are included therein; or (ii) includes tech-

nical employees (as defined from time to time by the

Board) unless all of the technical employees employed

by such institution are included therein; (iii) includes

clerical employees unless all of the clerical employees em-

ployed by such institution are included therein; or (iv)

includes service and maintenance employees—which shall

be defined to include all employees except (A) profes-

sional, technical, and clerical employees and (B) any in-

dividual employed as a guard... unless all of the service

and maintenance employees employed by such institution

are included therein. ... [Leg. Hist., supra at 108-109.]

48a

The Court of Appeals for the Second Circuit has

agreed with this conclusion,” The logic of Jewish

Hospital of Cincinnati dictates that the same con-

clusion be reached with respect to powerhouse units

of health care institutions.”

12 Long Island College Hospital v. N.L.R.B., 566 F.2d 833,

844, fn. 4 (1977). There, the court said:

We agree with this conclusion. Moreover, the preamend-

ment NLRB health care cases cited favorably in the legis-

lative history of the 1974 amendment do not call for a

different result. Two of the three cases are not deter-

minative of the skilled maintenance unit issue, as they

involved NLRB rejection of even narrower units than

those as issue here. See Woodland Park Hospital, 205

NLRB 888 (1973) (x-ray technicians); Four Seasons

Nursing Center, 208 NLRB 403 (1974) (2-man unskilled

maintenance unit). In the third case, Hxtendicare of

West Virginia, Inc., 208 NLRB 1232 (1973), the union

sought three separate units—for licensed practical nurses

(LPN’s), technical employees, and service and mainte-

nance employees. The employer contended that the only

appropriate unit was a single all-employee unit. The

NLRB approved 1) a separate LPN unit, and 2) a service

and maintenance unit including technicals but excluding

office clericals. As the issue of a separate maintenance-

only unit was not before the Board, Extendicare did not

raise the same issue as the instant case. Moreover, while

the legislative history clearly approved Woodland Park

and Four Seasons, its reference to Extendicare was ob-

scure at best: “We do not necessarily approve all of the

holdings of that decision.” Sen. Rep. No. 93-766, 93d

Cong., 2d Sess. 5 (1974), Legis. Hist., supra, at 12; H.R.

Rep. No. 93-1051, 98d Cong., 2d Sess. 6-7 (1974), Leg.

Hist., supra, at 274-75.

18 This conclusion is further supported by the remarks of

Congressman Thompson, quoted infra.

49a

We think it is also clear that Congress intended

that we should rely on our traditional community-of-

interest criteria in making unit determinations in

the health care industry. Under Section 9(b), the

issue is whether the petitioned-for unit is appropriate

for the purposes of collective bargaining. To deter-

mine this, the Board must decide whether the unit

sought is composed of employees who will share sim-

ilar collective-bargaining objectives; a so-called com-

munity of interest must exist. There are certain cri-

teria the Board has traditionally considered to deter-

mine the existence of this requisite community of

interest; these include similarity of wages and hours,

extent of common supervision, frequency of contact

with other employees, degree of interchange and

functional integration with other employees, and area

practice and patterns of bargaining.’® If Congress

had wanted to preclude the Board from using tradi-

tional criteria in making unit determinations in the

health care industry, it could have easily amended

section 9(b) to so provide. Indeed, it had the oppor-

tunity to do so, ie., it could have adopted the ap-

14 Sec. 9(b) states:

The Board shall decide in each case whether, in order to

assure to employees the fullest freedom in exercising the

rights guaranteed by this Act, the unit appropriate for

the purposes of collective bargaining shall be the em-

ployer unit, craft unit, plant unit, or subdivision there-

15 See 8 NLRB Ann. Rep. 157 (1988). See, generally, Kala-

mazoo Paper Box Corporation, 186 NLRB 134, 187 (1962).

50a

proach of Senator Taft in S. 2292."° What was not

amended, however, was not meant to be changed.”

As Senator Williams stated, in referreding to the

amendments, “[I]n this carefully tailored legisla-

tion, Congress decided to treat the health care in-

dustry uniquely in certain respects. Jt decided to go

so far, and no more... .” (Emphasis supplied. )*

Congress believed, however, that the Board should

consider the proliferation problem as a factor in mak-

ing unit determinations in the health care industry

and that it was not necessary to amend Section 9(b)

in order for the Board to do so. In developing an

approach to take to unit issues int he industry,

therefore, the threshold issue was to decide what

Congress meant by “proliferation.” Here, we looked

at the statements of the sponsors of the amendments

to help explain the language of the committee reports.

Senator Taft expressed his views about prolifera-

tion this way:””

The issue of proliferation of bargaining units in

health care institutions has also greatly concerned

me during consideration of legislation in this

area. Hospitals and other types of health care

16 Fy, 11, supra.

17 Elsewhere, Congress amended the Act to accommodate the

special needs of the health care industry, e.g., the notice pro-

visions of Sec. 8(d) were changed and Sec. 8(g) was added.

18 Leg. Hist., supra at 864. See also Beth Israel Hospital v.

N.L.R.B., 98 S.Ct. 2468, 84 LC § 10,655 (1978).

19 120 Cong. Rec. S. 6940 (1974), Leg. Hist., swpra at 113-

114.

Bla

institutions are particularly vulnerable to a

multiplicity of bargaining units due to the di-

versified nature of the medical services provided

patients. If each professional interest and job

classification is permitted to form a separate

bargaining unit, numerous administrative and

labor relations problems become involved in the

delivery of health care. The provisions of S.

2292 placed a statutory limit of four bargaining

units in a health care institution. While this

precise approach was not adopted by the com-

mittee, report language was agreed upon to stress

the necessity to the Board to reduce and limit the

number of bargaining units in a health care

institution. The report on page 5 states:

Due consideration should be given by the

Board to preventing proliferation of bar-

gaining units in the health care industry.

In this connection, the committee notes with

approval the recent Board decisions in Four

Seasons Nursing Center, 208 NLRB No.

5 , 85 LRRM 1093 (1974), and Woodland

Park Hospital, 205 NLRB No. 144, 341

LRRM 1075 (1973), as well as the trend

toward broader units enunciated in E'xtendi-

care of West Virginia, 203 NLRB No. 170,

83 LRRM 1242 (1973).

I believe this is a sound approach and a construc-

tive compromise, as the Board should be per-

mitted some flexibility in unit determination

cases. I cannot stress enough, however, the im-

portance of great caution being exercised by the

Board in reviewing unit cases in this area. Un-

warranted unit fragmentation leading to juris-

52a

dictional disputes and work stoppages must be

prevented.

The administrative problems from a practical

operational viewpoint and labor relations view-

point must be considered by the Board on this

issue. Health-care institutions must not be per-

mitted to go the route of other industries, par-

ticularly the construction trades, in this regard.

Senator Williams further explained: ”

[T]he National Labor Relations Board has shown

good judgment in establishing appropriate units

for the purposes of collective bargaining, par-

ticularly in wrestling with units in newly cov-

ered industries. While the Board has, as a rule,

tended to avoid an unnecessary proliferation of

collective bargaining units, sometimes circum-

stances require that there be a number of bar-

gaining units among nonsupervisory employees,

particularly where there is such a history in the

area or a notable disparity of interests between

employees in different job classifications.

While the committee clearly intends that the

Board give due consideration to its admonition

to avoid an undue proliferation of units in the

health care industry, it did not within this frame-

work intend to preclude the Board acting in the

public interest from exercising its specialized

experience and expert knowledge in determining

appropriate bargaining units. (N.L.R.B. v. Dela-

ware-New Jersey Ferry Co., 123 F.2d 130 (3d

Cir. 1942).)

20 120 Cong. Rec. S. 12104 (1974), Leg. Hist., supra at 362-

363.

53a:

Congressman Thompson added: ”

With respect to the question of bargaining units,

the committee stresses its concern with prevent-

ing an undue proliferation of bargaining units

in the health care industry. The committee cited

certain Board decisions in the health care indus-

try which would reflect the statutory mandates.

By so doing, however, the committee did not in-

tend to foreclose the Board from continuing to

determine traditional craft and departmental

units, such as stationary engineers in the health-

care field.

The St. Vincent’s court concluded that the term

“proliferation” was intended to reflect an assessment

that the Board’s approach to the industrial sector had

allowed for an undue number of bargaining units.”

21120 Cong. Rec. E4899 (daily ed., July 22, 1974). We be-

live these post-passage remarks are relevant to the issue of

what Congress meant by proliferation, especially as Congress-

man Thompson was a cosponsor of the 1974 amendments

(compare General Service Employees Union Local 73, affili-

ated with Service Employees International Union, AFL-CIO

[A-1 Security Service Co.] v. N.L.R.B., 578 F.2d 361 (D.C.

Cir. 1978) court’s reference to Senator Goldwater’s remarks),

but would reach the same conclusions without reference to

them. Further, Regional Railroad Reorganization Act Cases,

419 U.S. 102 (1974), cited by the dissent, is not on point.

There, the post-passage remarks at issue were being used to

contradict the congressional intent that had been expressed

prior to passage. Jd. at 1382. Here, there is no conflict between

Congressman Thompson’s remarks and those of Senators Taft

and Williams.

22 The court stated:

Proliferation of units in industrial settings has not been

the subject of congressional attention but fragmentation

54a

As his remarks show, however, Senator Taft was

thinking of a unit pattern similar to that of the con-

struction industry, where employees have been

grouped into units according to craft skills and job

functions.” If the pattern of the construction in-

dustry were used as a model for the health care in-

dustry, health care employees would be grouped into

units according to “each professional interest and

job classification.” (Emphasis supplied.) That is

what the Senator wanted the Board to avoid.

We also believe Senator Taft’s reference to “other

industries”” necessarily refers to industries organ-

ized like the construction industry. For example, to

a certain extent, newspaper employees have tradi-

tionally been grouped into units according to craft,

see, e.g., Sufsun Co. Inc., 174 NLRB 977 (1969)

(separate units of photoengravers, pressmen, and

in the health care field has aroused legislative apprehen-

sion. The Board therefore should recognize that the con-

tours of a bargaining unit in other industries do not fol-

low the blue print Congress desired in a hospital. [567

F.2d at 592.]

28 See, generally, R. B. Butler, Inc., 160 NLRB 1595 (1966),

and the cases cited therein. There, the Board stated at 1599:

In the construction industry, collective bargaining for

groups of employees identified by function as well as

those groups identified by craft skills has proven success-

ful and has become an established accommodation to the

needs of the industry and of the employees so engaged.

The construction industry had been substantially organized

before the Board took jurisdiction over it. See, generally, I

Leg. Hist. 428 (1959) (Labor-Management Reporting and

Disclosure Act).

55a

stereotypers) and job function, see, e.g., Knoxville

News-Sentinel Company, Inc., 188 NLRB 782 (1962)

(mailers). To interpret this phrase as a reference

to the Board’s general unit approach to the indus-

trial sector, as the court and the dissent do, would

create a direct conflict between Senators Taft and

Williams regarding the meaning of the word “proli-

feration.” This is because Senator Williams, as indi-

cated, believed the Board had “as a rule” avoided

unnecessary proliferation. What else would the

phrase “as a rule” refer to, if not to the industrial

sector, where the bulk of the Board’s unit determina-

tions are made? Therefore, to read Senator Taft’s

phrase “other industries” as the dissent does would

mean that, while Senator Williams was explaining

that the Board had as a rule not created too many

industrial units, Senator Taft was saying the exact

opposite. We doubt that the two chief sponsors of

the 1974 amendments would disagree about the mean-

ing of such an important term.

Thus, while accepting his colleagues’ judgment that

a bill allowing for only hospitalwide professional,

technical, service and maintenance, and office clerical

units did not afford the Board sufficient flexibility

under Section 9(b), Senator Taft did not want the

Board to adopt an approach that would lead to the

other extreme, i.e., a unit pattern where each pro-

fessional group and job classification at a hospital

was separately represented. At the same time, nei-

ther the Senator nor Congress intended that every

56a

unit limited to a single professional group or job

classification should be held per se inappropriate.”

Congressman Thompson’s remark, quoted above, re-

emphasized this point. The remark, just quoted, by

Senator Williams also shows that Congress intended

that the appropriateness of health care units should

be determined by the Board’s traditional community-

of-interest criteria; by what other criteria could a

“notable disparity of interests” be established?

The St. Vincent’s court, however, believed the ap-

plication of these traditional criteria would lead to

“proliferation.” As indicated above, we disagree with

the court on what Congress meant by this term.

Despite this, the court did raise a critical issue: Has

the Board prevented proliferation to the extent Con-

gress wished? A review of our decisions will demon-

strate that, in our judgment, we have.

24 The dissent also asserts that we cannot consider the fail-

ure of the Senate Labor Committee to adopt the unit approach

of S. 2292 to help ascertain legislative intent. This is a

puzzling assertion. The unit approach of S. 2292 “was not

adopted by the committee,” as Senator Taft acknowledged ;

rather, a “constructive. compromise” was reached, i.e., the

language of the committee report, which permitted the Board

some “flexibility.” Clearly, the meaning of this compromise

can only be understood by reference to S. 2292. Also, U.S. Vv.

Price, 361 U.S. 304 (1260), cited by the dissent, is completely

inapposite. There, the Court refused to draw any inference

from the failure of Congress to act on a proposal that would

have reversed an appellate court’s interpretation of 2 pro-

vision of the Revenue Act. The circumstances of Price are

clearly not analogous te those here.

57a

Il.

The initial lead cases regarding heaith care insti-

tutions involved a variety of units. Oral arguments

was held for six of these cases: Mercy Hospitals of

Sacramento,* St. Catherine’s Hospital of Dominican

Sisters of Kenosha, Wisconsin, Inc.,% Newington

Children’s Hospital,” Sisters of St. Joseph of Peace,”

Duke University,” and Mount Airy Foundation, d/

b/a Mount Airy Psychiatric Center.” Two other

cases, Nathan and Miriam Barnert Memorial Hos-

pital Association d/b/a Barnert Memorial Hospital

Center®™ and Shriners Hospitals for Crippled Child-

ren,” were also decided along with these six.

Beginning with the analysis of the legislative his-

tory described above, a majority of the Board decided

to apply traditional community-of-interest criteria to

decide the unit issues raised by these initial cases.

Application of these criteria led the Board majority

to conclude that the Board’s unit approach to the

industrial sector would also suit the health care in-

dustry, i.e., satisfy the policy objective of Section

25 217 NLRB 765 (1975).

26 217 NLRB 787 (1975).

27217 NLRB 793 (1975).

28 217 NLRB 797 (1975).

2° 217 NLRB 799 (1975).

% 217 NLRB 802 (1975).

31 217 NLRB 775 (1975).

32 217 NLRB 806 (1975).

58a

9(b)—to guarantee employees the fullest freedom to

exercise the rights granted by the Act—and avoid

proliferation. Before explaining our lead decisions,

some background about the Board’s general treat-

ment of industrial sector units is necessary.

For unit purposes, regardless of industry, the Act

distinguishes between professional and nonprofes-

sional employees.** Thus the first proviso to Section

9(b) entitles professional employees to separate

representation, apart from nonprofessionals.* This

proviso, however, does not require that an employer’s

entire professional work force be grouped together

in a single unit,* and units that include only a seg-

ment of an employer’s professional work force may be

found appropriate. Such units, however, must be

an identificable group with a community of interest

that is separate, or distinct, from the excluded pro-

fessionals.”

33 Sec. 2(12) defines the term “professional employee.”

34 Sec. 9(b) (1) states:

[T]he Board shall not (1) decide that any unit is appro-

priate . . . if such unit includes both professional em-

ployees who are not professional employees unless a

majority of such professional employees vote for inclu-

sion in such unit.

35 Westinghouse Electric Corporation (Elevator Division)

v. N.L.R.B., 236 F.2d 9389 (3d Cir. 1956).

36 See Douglas Aircraft Company, Inc., 157 NLRB 791

(1966) ; see also Fordham University, 193 NLRB 134 (1971).

311d. Cf. General Electric Company, 148 NLRB 1660

- (1964).

59a

Industrial sector nonprofessionals are traditionally

divided into three broad categories: production (or

service) and maintenance, technical, and office cleri-

cal. The Board has generally found that, because the

employees within each of these three categories

usually possess a separate community of interest,**

separate plantwide units of production (or service)

and maintenance employees,” technicals,“” and office

clericals* are appropriate. Units limited to a seg-

ment a plant’s office clericals or technicals may also

be appropriate. Here, too, however, the employees

in such units must constitute an identifiable group

with a community of interest that is separate or dis-

tinct from the other unrepresented office clericals “

38 See, e.g., Southern California Gas Company, 10 NLRB

1123, 1138 (1939) ; Litton Industries of Maryland, Incorpo-

rated, 125 NLRB 722, 724-725 (1959); The President and

Directors of Georgetown College for Georgetown University,

200 NLRB 215 (1972). See also The Sheffield Corporation,

134 NLRB 1101 (1961).

8° A unit of production and maintenance employees is pre-

sumptively appropriate. The Kroger Company, 155 NLRB

346, 550 (1965). See The President and Directors of George-

town College for Georgetown University, supra, fn. 38.

0 E.g., United Shoe Machinery Corporation, Beverly Manu-

facturing Division, 185 NLRB 200 (1970).

“ E.g., John H. Harland Company, 127 NLRB 588 (1960).

42See Safeway Stores Incorporated, 174 NLRB 1274

(1969) ; cf. Collins Radio Company, 206 NLRB 108 (1973) ;

California Physiciens’ Service d/b/a Califorynia Blue Shield,

178 NLRB 716 (1969); Bank of America, National Trust

and Savings Association, 174 NLRB 101 (1969); General

Eleetric Company, 148 NLRB 811 (1964).

60a

or technicals.“* Under similar tests, units limited to

a segment of an employer’s production (or service)

and maintenance complement may also be found ap-

propriate, i.e., units organized according to craft, e.g.,

electricians,“ or departments, e.g., maintenance * or

boiler room.“

The first unit case to deal with health care pro-

fessionals was Mercy Hospitals of Sacramento. There

separate units of registered nurses and medical lab-

oratory technologists were sought.*’ Because these

units included only segments of the hospital’s pro-

fessional work force, the Board majority applied the

test for such units described above.

The facts were these: The duties and responsi-

bilities of registered nurses could not be delegated to

other hospital employees; for accreditation purposes

48 See Federal Electric Corporation, Western Test Range,

157 NLRB 1180 (1966); cf. Astronautics Corporation of

America, 310 NLRB 650 (1974) ; General Electric Company,

173 NLRB 399 (1968) ; The Bendix Corporation, Kansas City

Division, 15 NLRB 718 (1964); Westinghouse Electric Cor-

poration (Naval Reactors Facility), 137 NLRB 332 (1962).

44 See, e.g., E. I. Dupont De Nemours and Company, 162

NLRB 413 (1966).

45See American Cyanamid Company, 181 NLRB 909

(1961).

46 See, e.g., New England Confectionary Company, 108

NLRB 728 (1954). Empire State Sugar Company, Inc., 166

NLRB 31 (1967), enfd. 401 F.2d 559 (2d Cir. 1968) ; cf. Mar-

riott Hotels, Incorporated, 187 NLRB 899 (1970).

. 4? The parties stipulated that both groups of employees were

professionals.

614

the hospital had to maintain a separately adminis.

tered department of nursing, run by a director of

nursing; and the control of the working conditions

and hiring and firing of registered nurses was cen-

tralized with that director. Further, as a precon-

dition of employment, registered nurses had to pass

a uniform national licensing examination and acquire

a state license. The Board found the above facts

established the “singularity” of interests of the regis-

tered nurses and therefore granted them a separate

unit.

At the same time, however, the Board concluded

that a unit limited to medical laboratory technologists

was inappropriate under this test, and found instead

that a unit of all other professionals, including medi-

cal laboratory technologists and excluding registered

nurses, would be appropriate. The Board expressly

did not decide (1) whether a unit limited to phy-

Sicians was appropriate or (2) whether registered

nurses would automatically be included with other

professionals when no union was seeking to represent

them separately.*

Since Mercy Hospitals of Sacramento, the Board

has continued to apply the same test to unit issues

*8 Significantly, nothing said during the 1974 debates in-

dicated that Congress would have disapproved of such a unit;

rather, keying into the statement, quoted above, by Senator

Williams, the opposite seemed true.

4° Subsequently, the Board decided not to include registered

nurses with other professionals automatically. Dominican

Santa Cruz Hospital, 218 NLRB 1211 (1975).

62a

involving professionals. The Board has continued to

apply the same test to unit issues involving profes-

sionals. The Board has found appropriate a profes-

sional unit that excluded both registered nurses and

physicians because physicians, like registered nurses,

possess a separate and distinct community of in-

terest: physicians perform unique functions with

respect to both actual patient care and the direction

of others who also provide such care, receive extensive

and specialized education and training, and are paid

appreciably higher salaries than other professionals.

Also under this test, however, the Board has found

inappropriate units limited to psychiatrists (exclud-

ing other physicians)" and pharmacists.”

As to the nonprofessional employees, the Board

initially found that hospital technicals, service and

maintenance employees, and office clericals possessed

separate communities of interest and therefore de-

cided to adhere to the industrial sector’s unit pattern

for such employees. Mercy Hospitals of Sacramento,

Nathan and Miriam Barnert Memorial Hospital

d/b/a Barnert Memorial Hospital, Newington Child-

50 Ohio Valley Hospital Association, 230 NLRB 604 (1977).

See also Montefiore Hospital and Medical Center, 2835 NLRB

No. 29 (1978) (unit of doctors and dentists, the facility’s only

professional employees, found appropriate).

51 New York University Medical Center, A Division of New

York University, 217 NLRB 522 (1975).

52 Kaiser Foundation Hospitals, 219 NLRB 825 (1975).

Accord: Beth Israel Hospital and Geriatrics Center, 219

‘ NLRB 520 (1975) ; San Jose Hospital & Health Care Center,

Inc., et al., 228 NLRB 21 (1977).

63a

ren’s Hospital, St. Catherine’s Hospital of Dominican

Sisters of Kenosha, Wisconsin, and Sisters of St.

Joseph of Peace held that separate hospitalwide units

for each of these three broad employee classifications

were appropriate. Mount Airy Foundation d/b/a

Mount Airy Psychiatric Center also held that, when

sought, and a community of interest existed, a unit

that combined both technicals and service and main-

tenance employees was appropriate. However, St.

Catherine’s Hospital of Dominican Sisters of Kenosha

and Duke University held, respectively, that units of

licensed practical nurses, apart from other technicals,

and switchboard operators, apart from other office

clericals, were inappropriate.” Since these lead cases,

absent a stipulation,“ no unit that was limited to

either a segment of a hospital’s technicals or office

clericals has been found appropriate.”

58 The Duke University opinion stated that the switchboard

operators involved there did possess a distinct community of

interest. That decision, however, should be read with St.

Catherine’s Hospital of Dominican Sisters of Kenosha and

Sisters of St. Joseph of Peace, which included switchboard

operators in the office clerical units found appropriate therein,

and with the cases cited at fn. 42, supra.

54 Otis Hospital, Inc., 219 NLRB 164 (1975).

55 Units of laboratory and x-ray technicians, apart from

other technicals, have been held inappropriate. American

Hospital Management Corp. d/b/a Mad River Community

Hospital, 219 NLRB 25 (1975) and 220 NLRB 350 (1975),

and Pontiac Osteopathic Hospital, 227 NLRB 1706 (1977).

Concededly, there was no clear articulation of the “community

of the “community of interest” standard to the facts of those

cases. However, these cases should be read with Barnert

64a

| TL

The only lead case that dealt with a unit limited

to a segment of a hospital’s service and maintenance

work force was Shriners Hospitals for Crippled

Children. There, the petitioner sought a unit of five

stationary engineers, a traditional powerhouse unit.

The decision included three different opinions. As

indicated, Members Penello and Kennedy decided that

because of the congressional concern with prolifera-

tion, such a unit was inappropriate. Then Chairman

Murphy and then Member Fanning concluded that

the legislative history did not foreclose such a unit

and found that, because there was a “notable dis-

parity of interests” between these stationary engin-

eers and the hospital’s remaining employees, the unit

sought was appropriate. Finally, Member Jenkins

agreed with the reading given the legislative history

by Chairman Murphy and Member Fanning, but

found the unit inappropriate under his view of the

correct standards of community of interest for this

type of case. A Board majority dismissed the peti-

tion.

About a year later, in St. Vincent's Hospital,” the

full Board in effect reconsidered Shriners. This case

Memorial Hospital, supra, and St. Catherine’s Hospital of

Dominican Sisters of Kenosha, supra, the lead cases regarding

hospital technicals. Similarly, a unit limited to a data process-

ing department’s employees, apart from other office clericals,

was found inappropriate. Seton Medical Center, 221 NLRB

120 (1975).

56 223 NLRB 638 (1976).

65a

was decided on the same day as Jewish Hospital As-

sociation of Cincinnati d/b/a Jewish Hospital of Cin-

cinnati,"” a case in which the unit sought was a

maintenance unit. Because of the importance of this

issue, the Board held oral argument on this latter

case, along with Riverside Methodist Hospital," Si.

Joseph Hospital,” and West Suburban Hospital,”

cases which also involved maintenance units.

In St. Vincent’s Hospital, the entire Board, includ-

ing Member Penello, agreed that the legislative his-

tory of the 1974 amendments did not prohibit the

Board from finding appropriate a unit of hospital

powerhouse employees. A majority applied tradi-

tional criteria to find the unit sought was appro-

priate.”

Members Penello and Walther agreed with this re-

sult, but applied a somewhat different standard: “

This standard, which is a more rigid one than is

applied in other industries, can be met when the

unit sought, unlike the situation in Shriners, is

composed of licensed craftsmen engaged in tradi-

tional craft work, which is performed in a sepa-

rate and distinct location apart from other em-

ployees in the health care facility. Normally,

57 228 NLRB 614 (1976).

58 228 NLRB 1084 (1976).

59 224 NLRB 270 (1976).

*1 See cases cited at fn. 46, swpra.

62 228 NLRB at 639-640.

66a

such employees do not perform other services

throughout the health care facility, as was the

case in Shriners, and there is, at most, minimal

transfer or interchange to and from the craft

unit.

In Jewish Hospital of Cincinnati, the initial issue

was whether the legislative history of the 1974

amendments required that all hospital maintenance

units be rejected as inappropriate. Here, as indicated

above, the entire Board agreed that Congress did not

intend to preclude the establishment of all such

units. The Board members did disagree about what

test to apply to decide the appropriateness of health

care maintenance units. Members Penello and

Walther applied the standard they had set forth in

St. Vincent’s Hospital. Chairman Murphy and Mem-

ber Fanning would have applied the test of Ameri-

can Cyanamid Company," the lead case on main-

tenance units at unorganized plants in the industrial

sector.“ Member Jenkins did not state a separate po-

sition, but joined in dismissing the petition for the

maintenance unit in that case. A majority compris-

ing Members Jenkins, Penello, and Walther also dis-

missed the petitions in Riverside Methodist Hospital

63 131 NLRB y09 (1961).

¢ Then Chairman Murphy voted to dismiss the petition for

the maintenance unit and joined Members Jenkins and

Walther in directing an election in a service and maintenance

unit. She did so, however, only because otherwise there would

not have been a majority for any of the petitioned-for units.

She made her position clear in her joint dissent with then

Member Fanning in Riverside Methodist Hospital, supra.

67a

and St. Joseph Hospital. In West Suburban Hospital,

Member Jenkins joined Chairman Murphy and Mem-

ber Fanning in finding the maintenance unit sought

therein appropriate.

Although agreeing that legislative history does not

preclude us from finding either a maintenance or

powerhouse unit appropriate, the Board Members

have disagreed about which standard to apply to de-

termine the appropriateness of either such unit. In

St. Vincent’s Hospital, a majority of the Board de-

cided to apply the test developed before 1974 to de-

termine the appropriateness of the powerhouse unit

sought therein. Today, Chairman Fanning and Mem-

bers Murphy and Truesdale agree to apply the test

of American Cyanamid Company to determine the

appropriateness of maintenance units at health care

institutions. Under American Cyanamid Company

and the pre-1974 test for powerhouse units, the issue

is essentially whether the employees sought are an

identifiable group with a ‘community of interest

that is sufficiently separate or distinct from the

other unrepresented service and maintenance em-

ployees to warrant separate representation.® For

6 Under American Cyanamid Company, the separate and

distinct quality of a maintenance department’s community of

interest is determined by considering several factors. These

include the level of skill required to perform the bulk of the

maintenance work involved; the amount of production em-

ployees’ work, if any, the maintenance employees perform,

and vice versa; the degree of interchange between production

and maintenance departments; the degree of shared super-

vision; the location of the maintenance department. Compare

68a

this reason, we find both tests are consistent with

the approach we have taken to unit issues in the

health care industry.

To summarize, our decisions have established that

the following basic groupings of health care employ-

ees are appropriate for unit purposes: registered

nurses, physicians, all professionals excluding regis-

tered nurses and physicians, service and mainten-

ance, technical, and office clerical employees. These

basic units are sufficiently inclusive to cover any

health care institution’s complement of employees.

We have found appropriate only two contested units

narrower than these units of powerhouse employees,

ie., stationary engineers or boiler operators,” and

The Kroger Company, 155 NLRB 546 (1965) ; Gerber Prod-

ucts Company, 162 NLRB 121 (1966) ; Crown Simpson Pulp

Company, 163 NLRB 796 (1967); Meyers Drum Company,

165 NLRB 1060 (1967) ; Oscar Meyer & Co., 172 NLRB 1471

(1968) ; Lily-Tulip Cup Corporation, 177 NLRB 71 (1969) ;

American Can Co., 179 NLRB 18 (1969); cases where the

Board found maintenance units appropriate, with Dundee

Cement Company, 170 NLRB 422 (1968); United Foods,

Inc., Dulaney Foods Division, 174 NLRB 91 (1969); U.S.

Plywood—Champion Papers, Inc., 174 NLRB 292 (1969) ;

Vincent Horwitz Company, Inc., 176 NLRB 496 (1969) ;

Alcan Aluminum Corporation, 178 NLRB 362 (1969) ; Mon-

santo Company, 1883 NLRB 415 (1970), cases where the

Board found such units inappropriate. The fact that mainte-

nance employees and production employees have frequent

contact with each other is not, alone, sufficient to destroy the

separate identity of a maintenance department. See American

Can Co., supra.

66 St. Vincent’s Hospital, supra; The Paul Kimball Hospital,

Inc., 224 NLRB 458 (1976); and Mercy Center f + Health

Care Services, 227 NLRB 1814 (1977).

69a

maintenance department employees.” Where main-

tenance units have been found appropriate, the

boiler operators or stationary engineers were in-

cluded.*® As this summary should demonstrate, the

approach taken by the Board to health care unit is-

sues has prevented proliferation; the unit pattern

that has emerged does not even remotely resemble

the pattern of the construction industry.”

6? West Suburban Hospital, supra; St. Francis Hospital—

Medical Center, 228 NLRB 1451 (1976) ; Eskaton American

River Health Care Center, 225 NLRB 755 (1976) ; Sinai Hos-

pital of Detrcit, 226 NLRB 425 (1976) ; Hebrew Rehabilita-

tion Center for the Aged, 2830 NLRB 255 (1977) ; Trinity

Memorial Hospital of Cudahy, Inc., 230 NLRB 855 (1977) ;

McClean Hospital, 234 NLRB No. 54 (1978).

$8 Td.

6 If other petitions are filed at this hospital, the units

sought will be subject to the same approach described above.

Thus, the reviewing court should not be led to think that

because this unit includes approximately 60 of 2,000 employees

other units limited to such small segments of the hospital’s

employee complement will perforce also be found appropriate.

In N.L.R.B. v. West Suburban Hospital, 570 F.2d 2138

(1978), the Court of Appeals for the Seventh Circuit, in

refusing to enforce the Board’s bargaining order, decided

that the Board, in its underlying unit determination fn. 60,

supra, had paid mere lip service to the congressional admoni-

tion regarding proliferation. We believe the above discussion

has demonstrated that we have heeded that admonition.

After reading the dissent’s accusations against us, we would

have expected a greater margin of difference between us, i.e.,

his “approach” has allowed for only two fewer units than

ours has.

70a

IV.

Finally, we note that, applying the test of Ameri-

can Cyanamid Company to the facts found here by

the PLRB,” we would reach the same result the

PLRB did. Thus, the vast majority of the main-

tenance department employees are skilled craftsmen

who perform craft work and must possess craft skills

when hired. The less skilled maintenance employees

perform tasks that are, to a significant extent, inte-

grated with those of the skilled maintenance em-

ployees. The work of housekeeping department em-

ployees, however, involves almost no skill whatsoever.

The maintenance employees also are separately

supervised, and work under terms and conditions that

are different from the housekeeping employees: a

higher pay scale, different hours, and separate lockers

and shower facilities. Further, during the 35 years

preceding the hearing, only eight housekeeping em-

ployees trcnsferred into maintenance department

jobs. The amount of transfer between departments

is therefore insignificant. Additionally, although

maintenance employees sometimes perform tasks in

tandem with housekeeping employees, they never do

the work of housekeeping employees, or vice versa.

Therefore, under American Cyanamid Company we

would find this an appropriate maintenance unit, if

7 The complete PLRB decision is attached hereto as an

appendix. Before us, Respondent did not attempt to show

through an offer of proof that PLRB’s factual findings were

erroneous.

Tla

the issue were before us de novo. Further, there is

no question that the PLRB proceedings reflected the

true desires of the affected employees. Election ir-

regularities were also not involved, and there has

been no deviation from due process requirements.”

There is therefore no reason for refusing to extend

comity here. To require another hearing to relitigate

the unit issue in these circumstances would run coun-

ter to the aim of the 1974 amendments, i.e., promptly

to afford to the employees of nonprofit hospitals the

rights and protections of the Act that had for too

long been denied them.”

For the reasons stated above, we therefore reaffirm

the conclusions of law the Board made in its initial

decision in this case. Accordingly, we also reaffirm

the Order of that decision.

71 Respondent’s due process arguments are dealt with at

length in our initial decision.

72S. Rept. 93-766, 98d Cong. 2d Sess. 3 (1974), Leg. Hist.,

supra at 10.

72a

ORDER

It is hereby ordered that the Order in Allegheny

General Hospital, 230 NLRB 954 (1977), be, and it

hereby is, reaffirmed.

Dated, Washington, D.C. December 19, 1978

John H. Fanning, Chairman

Betty Southard Murphy, Member

John C. Truesdale, Member

NATIONAL LABOR RELATIONS BOARD

(SEAL)

73a

MEMER PENELLO, dissenting:

On the surface, the Board simply affirms in this

case its holding in a prior proceeding that comity

should be granted to a certification of the Pennsy]l-

vania Labor Relations Board (PLRB) of the Charg-

ing Party as the collective-bargaining representative

of a unit limited to employees of Respondent Hos-

pital’s maintenance department, and its finding that

Respondent violated Section 8(a) (5) and (1) of the

Act in refusing to bargain with the Charging Party

over the wages, hours, and other terms and conditions

of employment of the employees in the unit. But

the deeper significance of today’s decision lies in the

majority’s bold repudiation of Congress’ directive to

the Board to avoid proliferation of bargaining units

in the health care industry,” and its unconcealed de-

78 230 NLRB 954 (1977) (myself dissenting). The Board

also found that a strike commenced in protest of Respondent’s

refusal to bargain was an unfair labor practice strike, and

ordered Respondent to bargain with the Charging Party and,

upon application, to reinstate the strikers to their former, or

substantially equivalent, positions. I dissented on the ground

that the PLRB certification should not be given comity be-

cause the bargaining unit was not appropriate.

74S. Rept. 93-766, 93d Cong. 2d sess. 5 (1974), “Legislative

History of the Coverage of Nonprofit Hospitals Under the

National Labor Relations Act, 1974 (hereinafter Leg. Hist.)

at 12; H. Rept. 93-1501, 98d Cong. 2d sess. 6-7 (1974), Leg.

Hist., supra at 274-275. Though at times my colleagues seem

to acknowledge the existence of the legislative mandate

against unit proliferation in health care institutions, it is

evident from a reading of their entire opinion that these

references amount to no more than what one court of appeals

74a

termination to find bargaining units appropriate in

this field on the same basis it would in any other in-

dustry. I commend my colleagues for their candor

in announcing this intention. However, I forcefully

disagree with their approach, founded as it is upon

misinterpretation of legislative history, improper re-

liance upon “post-passage” personal remarks of one

legislator, misleading discussion of Board and court

cases, and astonishing assertions that application of

traditional principles of unit determintion have pre-

vented, and will prevent, the mushrooming of bar-

gaining units in health care institutions.

In 1974, Congress removed the statutory exemp-

tion from our jurisdiction enjoyed since 1947 by non-

profit hospitals,” finding ‘no acceptable reason why

1,427,012 employees of these non-profit, non-public

hospitals, representing 56% of all hospital employees,

should continue to be excluded from the coverage and

protections of the Act.” * At the same time, however,

the House and Senate “recognized that the needs of

patients in health care institutions required special

consideration in the Act... .”™ Having in mind the

has aptly characterized as “mere lip-service mention.”

N.L.R.B. v. West Suburban Hospital, 570 F.2d 218, 216 (7th

Cir. 1978).

7 P.L. 93-360, 83 Stat. 395.

76 Leg. Hist., supra at 10.

77 Id. In a new Sec. 2(14) of the Act, Congress defined the

term “health care institution” to include facilities other than

75a

disruption in the delivery of health care services to

patients likely to be caused by work stoppages, Con-

gress amended Section 8(d) of the statute to provide,

where collective bargaining involves employees of a

health care institution, that earlier notice of termi-

nation or modification of an existing contract be ten-

dered to the other party and to the Federal Mediation

and Conciliation Service (FMCS), that a labor or-

ganization give 30 days’ notice of the existence of

a dispute to FMCS where bargaining is for an initial

contract, and that, in either case, the parties submit

to mandatory mediation by FMCS. To the same end,

Section 8(g), which requires that labor organization

notify a health care institution 10 days in advance

of a strike or picketing, was added to the Act.

But congressional concern with insuring uninter-

rupted patient care at health care institutions did not

stop with enacting these special notice and mediation

requirements for use when the immediate prospect of

a work stoppage looms. The legislators desired as

well to limit the incidence of strikes and work stop-

pages by instructing the Board to minimize the num-

ber of bargaining units in this industry. Congress

understood that the risk of disruptive work stoppages

in a health care facility would be increased the

larger the number of bargaining units, primarily

because of the heightened possibility of jurisdictional

nonprofit hospitals: “. . . any hospital, convalescent hospital,

health maintenance organization, health clinic, nursing home,

extended care facility, or other institution devoted to the care

of sick, infirm, or aged person [sic].”

‘76a

disputes among competing unions and the traditional

reluctance of many employees to cross picket lines

erected even by unions other than their own. Rather

that placing a statutory restriction upon the type and

number of bargaining units which would be appro-

priate in a health care institution, Congress decided

to achieve the same goal of unit limitation by insert-

ing the following passage in the House and Senate

Committee Reports: ™

Due consideration should be given by the Board

to preventing proliferation of bargaining units

in the health care industry. In this connection,

the Committee notes with approval the recent

Board decisions in Four Seasons Nursing Center,

208 NLRB No. 50, 85 LRRM 1093 (1974), and

Woodland Park Hospital, 205 NLRB No. 144, 84

LRRM 1075 (1973), as well as the trend toward

broader units enunciated in Extendicare of West

Virginia, 203 NLRB No. 170, 88 LRRM 1242

(1973).

1 By our reference to Extendicare, we do not neces-

sarily aprove all of the holdings of that decision.

For the sake of convenient reference, I will also

set forth here comments made by Senators Taft and

Williams explaining this paragraph. These remarks

of the Senate cosponsors of the 1974 amendments to

history.

Senator Taft stated:

The issue of proliferation of bargaining units

in health care institutions has also greatly con-

78 Leg. Hist., supra at 12 and 274-275.

77a

cerned me during consideration of legislation in

this area. Hospitals and other types of health

care institutions are particularly vulnerable to a

multiplicity of bargaining units due to the di-

versified nature of the medical services provided

patients. If each professional interest and job

classification is permitted to form a separate

bargaining unit, numerous administrative and

labor relations problems become involved in the

delivery of health care. The provisions of §. 2292

[a bill introduced by Senator Taft but not acted

upon by Congress] placed a statutory limit of

four bargaining units in a health care institu-

tion. While this precise approach was not adopted

by the committee, report language was agreed

upon to stress the necessity to the Board:to re-

duce and limit the number of bargaining units in

a health care institution... .

I believe this is a sound approach and a con-

structive compromise, as the Board should be

permitted some flexibility in unit determination

cases. I cannot stress enough, however, the im-

portance of great caution being exercised by the

Board in reviewing unit cases in this area. Un-

warranted unit fragmentation leading to juris-

dictional disputes and work stoppages must be

prevented.

The administrative problems from a practical

operational viewpoint and labor relation [sic]

viewpoint must be considered by the Board on

this issue. Health-care institutions must not be

permitted to go the route of other industries, par-

ticularly the construction trades, in this regard.

In analyzing the issue of bargaining units, the

Board should also consider the issue of the cost

78a

of medical care. Undue unit proliferation must

not be permitted to create wage “leapfrogging”’

and “whipsawing.” The cost of medical care in

this country has already skyrocketed, and costs

must be maintained at a reasonable level to per-

mit adequate health care for Americans from all

economic sectors.

The committee, in recognizing these issues with

regard to bargaining unit determination, took a

significant step forward in establishing the fac-

tor of public interest to be considered by the

Board in unit cases.”

Senator Taft also stated:

As to the issue of bargaining units, I would

like to clarify that my omission in my opening

remarks to mention the footnote to the Extendi-

care case in the committee report, certainly was

accidental. As stated in the committee report:

By our reference to Extendicare, we do

not necessarily approve all the holdings of

that decision.

Part of the unit findings in that case, it can

be argued, was overly broad and not consistent

with minimization of the number of bargaining

units in health care institutions. Certainly, every

effort should be made to prevent a proliferation

of bargaining units in the health care field and

this was one of the central issues leading to

agreement on this legislation. In this area there

is a definite need for the Board to examine the

public interest in determining appropriate bar-

7 Td. at 113-114.

79a

gaining units. NLRB v. Delaware-New Jersey

Ferry Co., 128 F.2d 130 (8rd. Cir. 1942).

Senator Williams stated:

[T]he National Labor Relations Board has shown

good judgment in establishing appropriate units

for the purposes of collective bargaining, par-

ticularly in wrestling with units in newly cov-

ered industries. While the Board has, as a rule,

tended to avoid an unnecessary proliferation of

collective bargaining units, sometimes circum-

stances require that there be a number of bar-

gaining units among nonsupervisory employees,

particularly where there is such a history in the

area or a notable disparity of interests between

employees in different job classifications.

While the committee clearly intends that the

Board gave due consideration to its admonition to

avoid an undue proliferation of units in the

health care industry, it did not within this frame-

work intend to preclude the Board acting in the

public interest from exercising its specialized

experience and expert knowledge in determining

appropriate bargain [sic] units. (NLRB v.

Delaware-New Jersey Ferry Co., 128 F.2d 130

(3d Cir. 1942) ).*

Although the majority refers to certain remarks

made by Representative Thompson, a sponsor of the

health care amendments in the House, these com-

ments may not properly be considered part of the

legislative history. Representative Thompson’s state-

% Td. at 255.

81 Id. at 362-363.

LARS ees 55a eewe Ss

- 80a

ments appear in the Congressional Record of July 22,

1974—-11 days after final approval of the legislation.”

The Supreme Court has ruled that “post-passage re-

marks of legislators, however explicit, cannot serve

to change the legislative intent of Congress” ex-

pressed before the passage of a law, and that com-

ments such as those of Congressman Thompson rep-

resent only personal views.” The Board is therefore

bound not to take these statements into consideration

in interpreting the Act.

Another bit of “non-legislative history” relied upon

by the majority, as well as by the Board in some

cases,“ involves congressional failure to enact S. 2292,

a bill introduced by Senator Taft while the 1974

revisions to the Act were under consideration, which

would gererally have limited bargaining units in

health care institutions to four specified types.® Con-

82 120 Cong. Rec. E.4899 (daily ed., July 22, 1974).

8 Regional Rail Reorganization Act Cases, 419 U.S. 102,

132 (1974).

4 See, e.g., Nathan and Miriam Barnert Memorial Hospital

Association d/b/a Barnert Memorial Hospital Center, 217

NLRB 1775, 777, fn. 25 (1975); The Jewish Hospital Associa-

tion of Cincinnati d/b/a Jewish Hospital of Cincinnati, 223

NLRB 614, 616°(1976).

* Leg. Hist., supra at 108-109. The units were (1) profes-

sional employees, (2) technical employees, (3) clerical em-

ployees, and (4) service and maintenance employees. The bill

also provided that existing bargaining units in health care

institutions would not be disturbed, and that units other than

the basic four would be appropriate if agreed upon by the

parties. A separate unit of guards would also be required by

Sec. 9(b) (3) of the Act.

8la

trary to the majority, the bill was not “rejected” by

the Senate or House and no inference regerding leg-

islative intent may properly be drawn frow congres-

sional inaction.”

II.

To determine whether a group of employees con-

stitutes a unit appropriate for purposes of collective

bargaining, the Board has historically utilized its

“community of interest” test.” My colleagues say

that “[i]t is . . . clear that Congress intended that

we should rely on our traditional community-of-in-

terest criteria in making unit determinations in the

health care industry.” This is not clear to me; in-

deed, I find only evidence to the contrary. Framed

in the simplest terms, if Congress had wanted the

Board to employ only its usual community-of-interest

standard in deciding appropriate units in health care,

institutions, there would have been no need to cau-

tion the Board in the committee reports to avoid

proliferation of health care bargaining units. As

*6 See U.S. v. Price, 361 U.S. 304 (1960).

8 In applying this standard, we evaluate the mutuality of

interest in wages, hours, and working conditions among em-

ployees; commonality of qualifications, training, and skills;

frequency of contact and degree of interchange with other em-

ployees; frequency of transfer to and from the unit under

consideration; commonality of supervision ; degree of integra-

tion with the work functions of other employees; area prac-

tice and patterns of collective-bargaining; as well as any his-

tory of bargaining involving the employees who would be

included in the unit. See, in general, Kalamazoo Paper Boz

Corporation, 136 NLRB 134 (1962).

82a

phrased by Senator Taft, the congressional mandate

against multiplication of bargaining units in this

field forms a “factor of public interest,” beyond that

of community of interest among employees, which

the Board is required to take into account when mak-

ing decisions about the appropriateness of units in

a health care institution. My review of the cases

cited by Congress in the paragraph regarding bar-

gaining units in the committee reports, together with

the comments of Senators Taft and Williams, leaves

me free from doubt that consideration by the Board

of this “factor of public interest” necessitates finding

inappropriate in the health care field units which

might be acceptable in other industries.

Congress directly approved in the committee re-

ports the holdings of the Board in Woodland Park

Hospital, Inc.,* and in Four Seasons Nursing Center

of Joliet.” In Woodland Park, the Board refused to

grant a requested unit of x-ray technicians in a for-

profit hospital, recognizing that to permit such sep-

arate representation would “lead to severe frag-

mentation of units in the health care industry.” ”

Likewise, the Board found inappropriate a separate

unit of less skilled maintenance employees in a nurs-

ing home in Four Seasons. Most significant, however,

was congressional endorsement of “the trend toward

broader units,” as exemplified by Extendicare of West

88 205 NLRB 888 (1973).

8° 208 NLRB 403 (1974).

% 205 NLRB at 889.

83a

Virginia, Inc., d/b/a St. Luke’s Hospital.’ In that

decision, the Board declined to allow a separate unit

of technical employees, apart from an overall service

and maintenance unit, at a for-profit hospital. A\l-

though the Board did accord separate representation

to licensed practical nurses (LPNs) in the same case,

Congress disagreed with our creation of an LPN

unit: “By our reference to Extendicare, we do not

necessarily approve all of the holdings of that deci-

tion.” * According to Senator Taft, this sentence

was inserted in the committee reports to indicate

that the Board’s LPN unit finding “was overly broad

and not consistent with minimization of the number

of bargaining units in health care institutions.” ® ,

Viewed in the narrowest sense, the citation of

Woodland Park, Four Seasons, and E.xtendicare, re-

flects congressional disapproval of separate units of

x-ray technicians, less skilled maintenance employees,

technical employees, and licensed practical nurses.

But the reference to these three decisions also dis-

closes a deeper and more general concern on the part

of Congress that the Board take care to limit the

number of bargaining units in health care facilities.

Congress underscored this concern by indicating its

preference for the broadest possible unit combina-

tion of employees in each of the cases mentioned.

*1 203 NLRB 1232 (1973).

* Leg. Hist., supra at 12, fn. 1, 275, fn. 1.

%83 Td. at 255.

84a

The remarks of Senators Taft and Williams, re-

produced at length earlier in this opinion, confirm

the intention of Congress respecting determination of

appropriate bargaining units in the health care in-

dustry. Senator Taft noted that the language of the

committee report “was agreed upon to stress the ne-

cessity to the Board to reduce and limit the number

of bargaining units in a health care institution,” and

emphasized that “every effort should be made to pre-

vent a proliferation of bargaining units in the health

care field.” The Senator stated that “unwarranted

unit fragmentation . . . must be prevented,” and

warned that, “Health-care institutions must not be

permitted to go the route of other industries, par-

ticularly the construction trades, in this regard.”

Senator Taft spoke also of “the importance of great

caution being exercised by the Board in reviewing

unit issues in this area.” Senator Williams com-

mented that “the committee clearly intends that the

Board give due consideration to its admonition to

avoid an undue proliferation of units in the health

care industry.” Although Senator Williams indicated

that bargaining history or a “notable disparity of

interests between employees in different job classifica-

tions” (emphasis supplied) might, in some circum-

stances, justify according separate representation to

a group of employees, it is certain he did not mean

that the Board was at liberty to grant units in the

health care industry on the basis solely of its usual

community-of-interest criteria. Indeed, the Senator

said very plainly that Board unit decisions in the

85a

health care industry would have to be made within

the “framework” of the congressional mandate

against unit proliferation.

ITI.

The precedin

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