Amicus Curiae Brief — American Hospital Assn. v. NLRB

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No. 90-97 PE aa

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1990

AMERICAN HOSPITAL ASSOCIATION,

Petitioner

NATIONAL LABOR RELATIONS BOARD, et al.

Respondents

On Petition For A Writ Of Certiorari To The United

States Court of Appeals For The Seventh Circuit

AMICUS CURIAE BRIEF OF THE

MARYLAND HOSPITAL ASSOCIATION, INC.

JOHN G. KRUCHKO*

PAUL M. LUSKY

KRUCHKO & FRIES

606 Towson Towers

28 West Allegheny Avenue

Baltimore, Maryland 21204

(301) 321-7310

Attorneys for Amicus Curiae

The Maryland Hospital

Association, Inc.

* Counsel of Record

A. The Plain Language Of The Act Requires A

Bargaining Unit Determination In Each Case . .

B. Implementation Of The Board’s Rule Will

Deny Hospitals An Opportunity To Be Heard

On The Appropriateness Of Any Specific F

— Bargaining Unit Within Their Facilities ..... ‘ 11

C. The Board’s Rule Ignores The Congressional

Admonition Against Undue Proliferation

Of Bargaining Units In The Health Care

D. The Board’s Rule Will Promote A Proliferation

Of Organized Units Within Acute Care Hospi-

tals And Multiply Costs For Hospitals Already

TABLE OF CONTENTS

Page

I. INTERESTOFTHE AMICUS CURIAE ...... 1 |

Il. SUMMARY OFTHEARGUMENT ........ 4

EE 6

7

4 Faced With Financial Difficulties ........ 18

” E. The Board’s Rule Is Arbitrary And Capri-

; | cious Because It Applies To All Hospitals

a In Maryland Regardless Of Their Size And

a The Diversity Of Services Offered At Each

. sav bevcces 24

a F. The Board’s Rule Is Arbitrary And Capricious

a \ Because It Ignores The Integration And Inter-

i — action Of Health Care Employees Within

* | Maryland Hospitals ............... 27

A ere ee ee 30

EE ES ee

at;

\

TABLE OF AUTHORITIES

Cases

American Hosp. Ass'n v. NLRB,

718 F. Supp. 704 (N.D. 11.1989) .........

American Hosp. Ass’n v. NLRB,

899 F.2d 651 (7th Cir. 1990) ............

Beth Israel Hosp. v. NLRB,

437 U.S. 483 (1987) ................

Big Y. Foods, Inc. v. NLRB,

651 F.2d 40 (ist Cir. 1981) .............

Caminetti v. United States,

CE

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc.,

Ee

Commissioner of Internal Revenue v. Aun ap. Co.,

a

Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc.,

447 U.S. 102(1980) ...........22505.

Escondido Mut. Water Co. v. La Jolla Band of Mission

Indians

466 U.S. 765 (1984) .............4.5.

Frederick Memorial Hosp., Inc.,

254 N.L.R.B.36(1981) ............5.

INS v. Cardoza Fonseca,

480 U.S. 421(1987) .............55.

NLRB v. Frederick Memorial Hosp.,

691 F.2d 191 (4th Cir. 1982) ............

NcRB v. HMO Int’l/California Medical Group Health

Plan, Inc.,

678 F.2d 806 (9th Cir. 1982) .........

18

Se

er _ on

TABLE OF AUTHORITIES (continued)

Cases Page

Newton- Wellesley Hosp.,

250 N.L.R.B. 409(1980) ............4.. 10

Otis Hosp., Inc.,

219 N.L.R.B. 164(1975) ..........254. 9

St. Anthony Hosp. Sys., Inc. v. NLPB,

884 F.2d 518 (10th Cir. 1989) ........... 18

St. Francis Hosp.,

271 N.L.R.B. 948 (1984)... 2.2... 2 2 ee, 10, 19

Southeastern Community College v. Davis

eee 8

Trustees of the Masonic Hall & Asylum Fund v. NLRB,

694 F.2d 626 (2d Cir. 1983) ............ 18

United States v. Ron Pair Enters., Inc.,

ee 8

United States v. Turkette,

i oT. 6 so os 4 es 6 eo Ole 8 .

United States Postal Serv.,

208 N.L.R.B. 948 (1974) .............. 10

Statutes, Rules, & Regulations

EE a eee 4,7

EES ee ee 10

Notice of Proposed Rulemaking

52 Fed. Reg. 25,142(1987) ............ 11

Second Notice of Proposed Rulemaking,

53 Fed. Reg. 33,900(1988) ...... 5, 12, 19, 25, 26, 27

Final Rule For Collective-Bargaining Units in the Health

Care Industry, 54 Fed. Reg. 16,347, 29 C.F_R. §

CEE OCS SSS e Se eecesseess 2,5

Miscellaneous

213 Daily Labor Report (BNA),

DUM hha webecscceeecens

Note, NLRB Guidelines for Determining Health Care

Industry Bargaining Units: Judicial Acceptance or

Back to the Drawing Board,

CR re

S. Rep. No. 766, 93d Cong., 2d Sess. 5 (1974); H.R. Rep.

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

12

— wots &

i seit ee erence p

No. 90-97

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1990

AMERICAN HOSPITAL ASSOCIATION,

Petitioner

NATIONAL LABOR RELATIONS BOARD, et al.

Respondents

On Petition For A Writ Of Certiorari To The United

States Court of Appeals For The Seventh Circuit

AMICUS CURIAE BRIEF OF THE

MARYLAND HOSPITAL ASSOCIATION, INC.

I. INTEREST OF THE AMICUS CURIAE

The Maryland Hospital Association, Inc. submits its brief as

amicus curiae in support of the Petitioner, the American Hospital

Association.! The Maryland Hospital Association, Inc. ("MHA") is

a private non-profit membership organization which has as its primary

focus assistance to its member institutions in providing efficient high

quality health care in Maryland. The MHA serves as a forum for

communication and cooperation among health care providers in

Maryland.

' all parties to this proceeding havc given their written consent for the filing of

this amicus curiae brief. The consent ietters are set forth in the Appendix to this brief.

(App., infra, la-4a).

2

The MHA has fifty-three acute care-hospital members repre-

senting all the acute care hospitals located in the State of Maryland.

App., infra, 5a-9a. Its members include large metropolitan hospitals

and small rural hospitals. The complexity of services offered in each

hospital also varies. Some hospitals are community hospitals provid-

ing general care, while others provide tertiary level care in a number

of specialty areas. Some of the acute care hospital members of the

MHA have psychiatric or mental health units in their facilities while

others combine acute care with long-term rehabilitative care.

The largest acute care hospital member of the MHA is The Johns

Hopkins Hospital ("Johns Hopkins") located in Baltimore, Maryland,

with over 6,000 employees and 1,036 beds. Equally representative of

the membership of the MHA, however, is Kent & Queen Anne’s

Hospital, a srnall rural hospital in Chestertown, Maryland, with ap-

proximately 300 employees and 64 beds. All acute care hospital

members of the MHA are subject to the National Labor Relations

Board’s Final Rule for Collective-Bargaining Units in the Health Care

Industry ("Final Rule" or the “Rule”). 54 Fed. Reg. 16,347-48, 29

C.F.R. § 103.30 (1989). Thus, all acute care hospital members of the

MHA have a vital interest in the American Hospital Association’s

challenge to the Final Rule promulgated by the NLRB.

Eleven of the private acute care hospital members of the MHA

have employees who are represented by unions. App., infra, 10a-12a.

These hospitals have experienced the substantial costs associated with

negotiating and administering collective bargaining agreements with

unions. Four acute care hospital members of the MHA are currently

involved in representation proceedings before the Board. On March

10, 1989, the Maryland Nurses Association ("MNA") filed a petition

with the NLRB, designated Case No. 5-RC-13206, seeking to repre-

sent a unit of approximately 600 registered nurses at Greater Baltimore

Medical Center ("GBMC"). The hospital has proposed, as an alterna-

tive bargaining unit, an all professional unit which would include

numerous other allied health professionals at the hospital. Although

a hearing was begun on the issue of the appropriate bargaining unit at

GBMC, a ruling on this issue was put on hold by the injunction issued

in this case by the United States District Court for the Northern District

of Illinois. The United States Court of Appeals for the Seventh Circuit

vacated the injunction against enforcement of the Board’s Final Rule

3

on April 11, 1990. The American Hospital Association gained a stay

of the court of appeals’ order pending this Court’s ruling on the petition

for a writ of certiorari. The writ of certiorari was granted on October

9, 1990.

A representation proceeding between Peninsula General Hospi-

tal Medical Center ("Peninsula General") and the MNA has also been

curtailed by the injunction issued by the district court in this case. The

MNA seeks to represent a unit of all technical employees at Peninsula

General. The hospital, however, seeks to have the NLRB certify a

broader unit of all nonprofessional employees. No decision has been

issued = this petition, designated Case No. 5-RC-13355 by the

NLRB.

If the decision of the Seventh Circuit is not reversed, however,

it is expected that Region 5 of the NLRB will move quickly to apply

the Board’s Final Rule to the petitions filed at GBMC and Peninsula

General. It is expected that the Region will certify the proposed unit

of registered nurses as an appropriate bargaining unit at GBMC

without considering the special circumstances of employment at the

hospital. Similarly, the Region will also approve the proposed unit of

technical employees at Peninsula General with-»)t considering

whether an all nonprofessional unit is the appropriate bargaining unit

for Peninsula General employees. If the Seventh Circuit’s decision is

not reversed, both GBMC and Peninsula General will be precluded

from exploring the appropriateness of alternative bargaining units in

response to the petitions filed by the MNA.

Those hospitals which have been touched by union organizing

or which face application of the Board’s Final Rule to pending

representation proceedings have relevant information to bring to bear

on the question of the validity of a per se bargaining unit rule which

would impose as many as eight bargaining units on health care

2 The other two hospitals involved in proceedings before the Board are Prince

George's Hospital Center and Greater Laurel- Beltsville Hospital. District 1199E-

SEIU has petitioned to represent technical employees in both hospitals. The peti-

tioned- for unit has been treated as a residual unit by the Board because other technical

employees at the hospitals are part of a service and maintenance unit represented by

Local No. 63, International Brotherhood of Firemen and Oilers. See discussion, pp.

22-23, infra.

4

workplaces without affording hospitals any opportunity to be heard

on the issue of the appropriateness of such unit:

The Board’s Final Rule ignores the differences between acute

care hospitals in Maryland, differences which, in any particular case,

make application of the Rule an arbitrary and capricious imposition

on the rights of member hospitals of the MHA to deal with their

employees over wages, hours and working conditions. The Board’s

Final Rule also ignores significant trends within acute care hospitals

in Maryland including the development of integrated systems for

delivery of health care to patients. The Rule fails to give recognition

to the extensive interaction between registered nurses and other allied

health professionals which is a natural outgrowth of these multidis-

ciplinary approaches to patient care. The Board’s Final Rule will only

lead to increased disruption within Maryland hospitals and an increase

in costs for acute care hospitals already struggling tq meet budgetary

constraints. The MHA is thus vitally interested in the issues presented

by this case and it believes it can illuminate the disruption and

associated costs that will be imposed on its acute care hospital mem-

bers if the Seventh Circuit’s decision vacating the injunction against

the Rule is allowed to stand.

Il. SUMMARY OF THE ARGUMENT

This case raises the issue of the NLRB’s authority to promulgate

and apply a rule mandating that only eight bargaining units are

appropriate within acute care hospitals regardless of their size, loca-

tion or differences in their operations. The MHA contends that the

Board’s Final Rule and its per se application to all representation

petitions involving acute care hospitals is contrary to Section 9(b) of

the National Labor Relations Act (the “Act”)which requires the Board

to decide appropriate bargaining units “in each case”. 29 U.S.C. §

159(b). Further, the Final Rule is in conflict with the congressional

admonition agaifist proliferation contained in the legislative history of

the Health Care Amendments Act of 1974.

The Board’s Final Rule provides for eight bargaining units

within acute care hospitals. The Rule makes clear that the eight

appropriate units set forth in the Rule are the only appropriate units

for bargaining “except in extraordinary circumstances”. The eight

units mandated by the Rule include: “(1) all registered nurses; (2) all

5

physicians; (3) all professionals except for registered nurses and

physicians; (4) all technical employees; (5) all skilled maintenance

employees; (6) all business office clerical employees; (7) all guards;

and (8) all [other] nonprofessional employees....” 54 Fed. Reg. 16,347-

48, 29 C.F.R. § 103.30.

The Rule contains an “extraordinary circumstances” exception

which may allow petitions involving bargaining units which are not

in substantial accordance with the provisions of the Rule. See Second

Notice of Proposed Rulemaking ("NPR II"), 53 Fed. Reg. 33,932-33

(1988). The Board’s “extraordinary circumstances” exception is ex-

tremely narrow, however. The Board has stated that it will not

consider additional evidence or arguments that a particular hospital

varied from the norm, even if the variation is “highly unusual”. /d. at

33,932. Hospitals bear a “heavy burden” to demonstrate that extraor-

dinary circumstances exist which make application of the Rule inap-

propriate. Jd. at 33,933. In particular, the Board has stated that

“increased functional integration of and a higher degree of work

contacts between, employees as a result of the advent of the multi-

competent worker, increased use of ‘team’ care and cross-training of

employees” would not be considered as a possible extraordinary

circumstance. /d. at 33,932. Differences in the sizes of various acute

care hospitals, the variety of services offered by each institution and

differences in staffing patterns among such facilities will also not be

given weig tl as extraordinary circumstances meriting relief from the

Rule. /d.

The Board’s Final Rule is thus arbitrary and capricious in that

its application would ignore the special circumstances of employment

within Maryland acute care hospitals and threatens to disrupt the

delivery of quality health care at Maryland institutions. Acute care

hospital members of the MHA will not have a meaningful opportunity

to argue the appropriateness of alternative bargaining units in response

to future representation petitions. The Rule is equivalent to an irrebut-

table presumption and therefore it is not consistent with the “in each

case” requirement of Section 9(b). The harm visited by the Board’s

Final Rule on acute care hospitals within Maryland can only be

avoided by reversal of the Seventh Circuit’s decision and reinstate-

ment of the district court’s permanent injunction prohibiting im-

plementation of the Rule.

Il. ARGUMENT

For over thirteen years, the NLRB determined the appropriate-

ness of bargaining units in acute care hospitals on a case by case basis.

In 1987, however, the Board decided to begin rulemaking proceedings

to create a uniform rule for determining appropriate bargaining units

in the health care industry. On April 21, 1989, the Board issued its

Final Rule for determining the appropriateness of bargaining units in

acute care hospitals. Instead of rebuttable guidelines for determining

bargaining units, the Rule that was created was rigid and inflexible,

mandating that only eight specific bargaining units are appropriate for

acute care hospitals.

The Petitioner, the Ame ican Hospital Association, challenged

the Rule in the United States District Court for the Northern District

of Illinois. On July 25, 1989, the district court issued a permanent

injunction barring the enforcement of the Board’s Final Rule.

American Hosp. Ass'n v. NLRB, 718 F. Supp. 704 (N.D. Ill. 1989).

The district court held that the Board’s Final Rule was in conflict with

the congressional admonition to give due consideration to preventing

proliferation of bargaining units in the health care industry. The court

said:

A rule which designates an absolute number of ap-

propriate units and mandates a particular division of

the workforce, especially in the health care field where

employees’ work environment varies widely, is not

responsive to Congress’ express concern. In fact, as

noted above, such a rule encourages, and perhaps

coerces, fragmentation of the labor force within par-

ticular health care facilities.

718 F. Supp. at 716.

Respondents appealed the district court’s decision to the Seventh

Circuit Court of Appeals. In American Hosp. Ass’n v. NLRB, 899

F.2d 651 (7th Cir. 1990), the Seventh Circuit reversed the decision of

the district court and vacated the injunction. The court of appeals held

that the “in each case” requirement of Section 9(b) did not require a

case by case determination of bargaining units. The court also held

that the Rule was not precluded by the congressional admonition

against proliferation of bargaining units in the health care field.

7

Finally, the court of appeals rejected the American Hospital

Association’s argument that the Final Rule was arbitrary and capri-

cious because it failed to distinguish between “hospitals of different

sizes and missions in different locations”. /d. at 659.

The MHA supports the argument of Petitioner in this case that

the Board’s Final Rule is contrary to Section 9(b) of the Act, is in

conflict with the congressional admonition against proliferation of

bargaining units in the health care industry, and is arbitrary and

capricious. As will be demonstrated below, the Board’s Final Rule

ignores significant differences among acute care hospitals in

Maryland and requires the creation of arbitrary bargaining units in

every health care workplace without providing each health care

employer the opportunity to demonstrate that the special conditions of

employment at its facility merit deviation from the Board’s mandated

bargaining units.

A. The Plain Language Of The Act Requires A

Bargaining Unit Determination In Each Case

Section 9(b) of the National Labor Relations Act provides in

pertinent part:

The Board shall decide in each case whether, in order

to assure to employees the fullest freedom in exercis-

ing the rights guaranteed by this Act, the unit ap-

propriate for the purposes of collective bargaining

shall be the employer unit, plant unit, or subdivision

thereof...

29 U.S.C. § 159(b).

Despite the clear directive in Section 9(b) that the Board must

determine an appropriate bargaining unit “in each case”, the Board

Proposes to implementa rule which would make eight bargaining units

per se appropriate in all acute care hospitals, regardless of their size

and the complexity of services offered within each facility. In so

doing, the Board has overstepped its rulemaking authority because its

new bargainiug unit rule is directly in conflict with the plain language

in the statute. The Rule irrebuttably presumes that certain bargaining

units are appropriate without allowing adjudication of substantive

issues impacting the appropriate unit determination or consideration

of specific employment facts in each case. Therefore, the Board’s

Final Rule must be held to be invalid.

This Court has long held that where the language of an act is

plain, it must be enforced according to its terms. See Caminetti v.

United States, 242 U.S. 470, 485 (1917) ("It is elementary that the

meaning of a statute must, in the first instance, be sought in the

language in which the act is framed, and if that is plain, ... the sole

function of the courts is to enforce it according to its terms."); see also

Consumer Prod. Safety Comm’nv.GTE Sylvania, Inc., 447 U.S. 102,

108 (1980) ("[T]he starting point for interpreting a statute is the

language of the statute itself. Absent a clearly expressed legislative

intention to the contrary, that language must ordinarily be regarded as

conclusive.").

All that is required for giving statutory language its conclusive

effect is that Congress’ intent be expressed with sufficient precision

in the act. See United States v. Ron Pair Enters., Inc., 489 U.S. 235,

241 (1989) (finding that the inquiry into the meaning of § 506(b) of

the Bankruptcy Code should begin and end with the language of the

statute itself.); INS v. Cardoza Fonseca, 480 U.S. 421, 452-53 (1987)

(Scalia, J., concurring) ("Judges interpret laws rather than reconstruct

legislators’ intentions. Where the language of those laws is clear, we

are not free to replace it with an unenacted legislative intent.");

Commissioner of Internal Revenue v. Asphalt Prods. Co., 482 U.S.

117, 121 (1987) ("Judicial perception that a particular result would be

unreasonable may enter into the construction of ambiguous

provisions, but cannot justify disregard of what Congress has plainly

and intentionally provided.").

Also, despite the generally held rule of deference to an agency’s

interpretation of a statute, the Board’s discretion and this Court’s

deference to the Board’s interpretation of Section 9(b) “is constrained

by [this Court’s] obligation to honor the clear meaning of a statute, as

revealed by its language, purpose and history”. Southeastern Com-

munity College v. Davis, 442 U.S. 397, 411 (1979). The principle of

deference to an agency’s construction of a statute has no application

where the language of the statute is clear. As stated by this Court in

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984):

9

When a court reviews an agency’s construction of the

Statute which it administers, it is confronted with two

questions. First, always, is the question whether Con-

gress has directly spoken to the precise question at

issue. If the intent of Congress is clear, that is the end

of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of

Congress.

Id. at 842.

As explained by the district court in this case, there is “compell-

ing support” in the legislative history of the National Labor Relations

Act to construe Section 9(b) in accordance with its plain and unam-

biguous meaning, i.e., that bargaining unit determinations “require

fact specific inquiries”. 718 F. Supp. at 710. The Board should not be

allowed to circumvent the plain meaning of Section 9(b) by “creating

an ambiguity where none exists”. See Escondido Mut. Water Co. v.

La Jolla Band of Mission Indians, 466 U.S. 765,781 (1984) (rejecting

the court of appeals’ purported discovery of an ambiguity in Section

4(e) of the Federal Power Act); United States v. Turkette, 452 US.

576, 580-81 (1981) (rule of ejusdem generis has no application where

there : no uncertainty as to the meaning of a particular clause in a

Statute).

The Board’s current interpretation of Section 9(b) should also

be rejected in light of its prior conflicting interpretations of its statutory

obligation to determine a bargaining unit “in each case”. Despite its

conclusion now that certain “pre-ordained” bargaining units are per

se appropriate, the Board has stated many times during adjudicatory

proceedings that generalizations as to appropriate bargaining units are

not appropriate. See, e.g., Otis Hosp., Inc., 219 N.L.R.B. 164, 165

(1975) ("[NJot all health care institutions may be exactly alike....

Between categories of employees similarly titled there may be sig-

nificant differences, not only in wages, hours, supervision, and the

like, but more importantly in functions, responsibilities, procedures,

and even expertise."); Newton-Wellesley Hosp., 250 N.L.R.B. 409,

411 (1980) (holding that the “in each case” requirement of Section

9(b) precluded a per se approach to bargaining unit determinations);

St. Francis Hosp., 271 N.L.R.B. 948, 953 n.39, 954 (1984) (finding

10

that the diverse nature of the health care industry precluded any

generalizations as to the appropriateness of particular bargaining units

and stating: “No unit is per se appropriate and ... separate repre-

sentation must be justified upon each factual record....”).

This Court has rejected requests for deference to agency

decisions where the position of the agency has been inconsistent. See

INS v. Cardoza Fonseca, 480 U.S. at 446 n.30 (“An agency interpreta-

tion of a relevant provision which conflicts with the agency’s earlier

interpretation is ‘entitled to considerably less deference’ than a con-

sistently held agency view.”). The NLRB has construed “in each

case” language in another statute, the Postal Reorganization Act, as

requiring case by case determinations of bargaining units. In United

States Postal Serv., 208 N.L.R.B. 948, 952-53 (1974), the Board

followed its traditional community of interests analysis in considering

the appropriateness of certain bargaining units involving the Postal

Service. The Board was persuaded to analyze the petitions on a case

by case basis by the language of the Postal Reorganization Act which

States: “The National Labor Relations Board shall decide in each case

the unit appropriate for collective bargaining in the Postal Service...”

39 U.S.C. § 1202. There can be no rational reason for a departure from

a case by case analysis of health care industry petitions where the

language of Section 9(b) also mandates that bargaining units be

determined “in each case”.

The “in each case” language of Section 9(b) clearly requires

adjudication of particular facts in each case to determine the ap-

propriate bargaining unit or at least a rule regulating bargaining unit

determinations that provides a meaningful opportunity for a health

care employer in any particular case to demonstrate that the Rule

should not be applied to its hospital. The Seventh Circuit’s tortured

interpretation of Section 9(b) for purposes of approving the Board’s

Final Rule should be rejected as contrary to the clear meaning of the

Statute.

11

B. Implementation Of The Board’s Rule Will Deny

Hospitals An Opportunity To Be Heard On The

Appropriateness Of Any Specific Bargaining

Unit Within Their Facilities

As argued above, Section 9(b) of the Act requires the Board to

make a bargaining unit determination “in each case”. For many years,

the Board has utilized a case by case hearing procedure to determine

the appropriate bargaining unit in acute care hospitals. Such a proce-

dure guarantees that each hospital will have the opportunity to be heard

on the appropriateness of any proposed bargaining unit. Amicus

curiae contends that only the Board’s case by case representation

procedures will provide the appropriate opportunity for health care

employers to present evidence relevant to the appropriate bargaining

unit question. A case by case determination affords employers the

right to be heard in a meaningful manner on important bargaining unit

issues and is consistent with the mandate of Section 9(b) of the Act.

In contrast, the Board’s Final Rule does not afford a health care

employer confronted with a petition for representation the opportunity

to argue that only certain bargaining units are appropriate because of

the special circumstances of employment in its facility. The Board’s

Final Rule creates a conclusive presumption that only certain units are

appropriate. As stated by the Board during its rulemaking proceeding:

We have decided not to make the units only “presump-

tively” appropriate, because one important advantage

of rulemaking is the certainty it offers... Though an

“extraordinary circumstances” exception has been in-

cluded, it is anticipated that the exception will be little

used and limited to truly extraordinary situations...

NPR I, 52 Fed. Reg. 25,142 (1987).

The Board’s decision to eschew a rebuttable presumption in

favor of a conclusive or ivrebuttable presumption creates a rule which

is inconsistent with the mandate in Section 9(b) to make bargaining

unit determinations “in each case.” As argued above, that language

mandates consideration of specific facts in each case. Unless inter-

ested parties are afforded an opportunity to rebut the presumptions

created by the Buard’s Final Rule, the Board’s rulemaking is contra’

to the Act and is thus invalid. See Big Y. Foods, Inc. v. NLRB, 651 F.2d

12

40, 45-46 (1st Cir. 1981) (stating that Section 9(b) would invalidate a

conclusive presumption because “a conclusive presumption precludes

the NLRB from making a determination based upon the unique

circumstances of a particular group of employees”). The Board has

discretion to use rulemaking but only if it is rational and consistent

with the Act. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 501 (1978);

see also Note, NLRB Guidelines for Determining Health Care In-

dustry Bargaining Units: Judicial Acceptance or Back to the Drawing

Board, 78 Ky. L.J. 143, 158-61 (1989).

The Board’s “extraordinary circumstances” exception will not

provide an adequate opportunity for individual hospitals to raise issues

regarding the appropriateness of any of the mandated bargaining units

in their facilities. As mentioned, the Board’s extraordinary cir-

cumstances exception is extremely narrow. In particular, the Board

does not intend to consider increased functional integration between

employees or a high degree of work contacts between employees as

an extraordinary circumstance meriting relief from the Rule. Similar-

ly, the increased use of team care and cross training of health care

professionals which is occurring with increasing frequency in modern

acute care hospitals will not be entertained by the Board as an extraor-

dinary circumstance. Differences in the sizes of acute care hospitals,

the variety of services offered by each institution, and differences in

staffing patterns among such facilities will also not be given weight

as extraordinary circumstances meriting relief from the Rule. 53 Fed.

Reg. 33,932-33 (1988).

Application of the Rule will prevent hospitals like GBMC and

Peninsula General from arguing the appropriateness of alternative

bargaining units in response to the pending petitions by the MNA. The

very factors that make each hospital unique will not be revealed if the

Board’s new Rule is allowed to be implemented and applied to the

pending petitions. For example, the petition for an all RN unit at

GBMC will undoubtedly be approved without a specific analysis of

employment conditions at GBMC. If the union is successful in

convincing registered nurses to vote for representation at GBMC, the

hospital will be faced with the dilemma of having to negotiate a

collective bargaining agreement which will govern the working con-

ditions of only a portion of the integrated team of health care profes-

sionals providing patient care services at GBMC. The result will be

13

a fragmentation of the workforce with some professionals working

under work rules governed by the collective bargaining agreement

while others will be working under the personnel policies of GBMC.

There are many factors which argue in favor of a broader all

professional unit at GBMC. The evidence of integration and interac-

tion between registered nurses and other health care professionals at

GBMC was presented at the hearing on the bargaining unit issue and

need not be repeated in detail here. In brief, however, there are many

departments at GBMC where registered nurses are integrated with

other health care professionals. For example, registered nurses within

the radiology department work with radiology technicians and other

allied health care professionals to assist in treatment of patients

undergoing intervention radiology. Similarly, in the neonatal unit at

GBMC, respiratory therapists work with registered nurses to provide

sophisticated care to infant patients within the unit. Operating room

procedures at GBMC include a variety of integrated services involving

doctors, registered nurses, operating room technicals, laser technicals,

pump technicals, and other equipment technicals. In cardiac

rehabilitation, physical therapists and registered nurses work together

to provide therapy. Registered nurses, dieticians, physicians and

pharmacists regularly consult regarding nutrition support issues in an

effort to enhance patient care at the hospital. The discharge planner

at GBMC is a registered nurse who works with other social workers

in advising patients on post-discharge treatment and recovery. Thus,

GBMC has substantial evidence of integration between registered

nurses and other allied health professionals which should be con-

sidered by the Region before it decides that only an all RN unit is

appropriate.

In addition to factors demonstrating an integrated professional

workforce at GBMC, the hospital also provides identical benefit plans

to registered nurses and other allied health professionals. The

registered nurses at GBMC share similar education and licensure

requirements with other health care professionals. Compensation

ranges are comparable for professionals at the hospital. Bonus pay,

weekend differential and weekend alternative benefits are paid to

allied health professionals as well as registered nurses. Allied health

professionals working in direct patient care areas, e.g., respiratory

therapists, radiology technologists, and medical technologists often

14

work the same shifts and get the same percentage differential as

registered nurses. Finally, education and training at GBMC is open

to coalitions of hea'th care professionals. it is obvious that the specific

conditions of employment at GBMC must be considered prior to any

determination of an appropriate bargaining unit. As currently struc-

tured, the Board’s Final Rule with its “extraordinary circumstances”

exception will not provide GBMC the opportunity to demonstrate that

an alternative bargaining unit is better suited to the special needs of

GBMC.

Similarly, if the Seventh Circuit’s decision is not overturned,

Peninsula General’s argument for an all nonprofessional unit will be

ignored by Region 5 and the union’s petition for a technical unit will

be automatically approved without considering the factors which

might make such a unit inappropriate. Again, Peninsula General has

argued those factors in a hearing before the Board. The Board,

however, will not consider the community of interests between tech-

nicals and other nonprofessional employees at Peninsula General if

the Final Rule is implemented.

Some of the factors which make a bargaining unit of all non-

professionals appropriate at Peninsula General include identical!

benefits, uniform personnel policies, similar scheduling, comparable

wages, considerable interaction and integration between service,

maintenance, and technical emp!oyees, numerous transfers between

technical and nontechnical categories, and common supervision. At

the hearing on the bargaining unit issue, the hospital was able to

demonstrate not only integration of technicals and other nonprofes-

sionals within departments (e.g., technical and other nonprofessional

members of the nursing team may check vital signs, maintain records,

provide colostomy care, transfer patients, feed patients, ambulate

patients, secure patient medical records, implement patient safety

measures, facilitate performance of diagnostic tests, order medication,

and generate documentation of patient care and charges) but also

amagpeen of technicals and other nonprofessionals between depart-

ments.

> The detailed information regarding integration and interaction between tech-

nicals and nonprofessionals at Peninsula General was culled from Peninsula General's

“Brief to the Regional Director on Behalf of Peninsula General Hospital” in Case No.

5-RC-13356.

15

For example, dietary cierks from the food and nutrition services

department at Peninsula General tabulate daily menus which are

collected from patients by members of the nursing team. Nursing

assistants help patients to understand menu selections. Nursing team

members, including licensed practical nurses and nursing assistants,

communicate physicians’ orders regarding specific dietary needs of

patients to the dietary staff. Environmental services employees com-

municate with nursing staff before cleaning rooms to determine

whether special precautions are required. Environmental services

personnel also provide special cleaning that is required in operating

rooms and delivery rooms and coordinate their functions with techni-

cal and nonprofessional staff assigned to these areas. Maintenance

employees must coordinate their efforts with personnel in patient care

and diagnostic areas. Physical therapy aides who assist in transporting

patients must interface with members of the nursing team to obtain

necessary medical records for documenting the care being provided

to patients. Nontechnical members of the nursing team assist technical

employees from the lab in drawing blood specimens from difficult or

uncooperative patients.

The hospital was also able to demonstrate extensive common

Supervision at the hearing by showing that forty-two technical and

other nonprofessional job classifications had shared supervision.

Evidence at the hearing supported the hospital’s comparable salary

argument in that 129 separate technical and other nonprofessional job

classifications shared the same starting rate.

Thus, Peninsula General has made a substantial showing of

common interests between technicals and other nonprofessionals in

the hearing before the NLRB. The hospital’s efforts in this regard will

be for naught, however, if the Final Rule is implemented by the Board.

The Board’s narrow extraordinary circumstances exception will not

allow consideration of the factual record established by Peninsula

General at the representation hearing. The petition for a technical unit

will be approved without consideration of the many factors which

militate against adoption of such a unit.

The immediate harm that will result to acute care hospitals as a

consequence of the Board’s decision to abandon case by case ad-

judication and resort to a per se rule regarding bargaining units is

16

obvious with hospitals like GBMC and Peninsula General. They are

interested parties to representation proceedings yet the Board’s Rule

will effectively prohibit them from presenting any evidence which

might rebut the Board’s presumption that only certain bargaining units

are appropriate. In these cases, the Rule will have an immediate

impact. It can be seen, however, that the proliferation of bargaining

units fueled by the Board’s Rule and the consequent impact on

administrative costs at other hospitals within Maryland also make the

Final Rule unjustifiable.

C. The Board’s Rule Ignores The Congressional

Admonition Against Undue Proliferation Of

Bargaining Units In The Health Care Industry

Hospitals within Maryland must regulate their labor relations

policies in accordance with the National Labor Relations Act as

interpreted by the National Labor Relations Board and as enforced by

the United States Court of Appeals for the Fourth Circuit. The Fourth

Circuit requires each bargaining unit determination of the NLRB to

reflect the congressional admonition in the legislative history of the

Health Care Amendments Act of 1974 that “due consideration should

be given by the Board to preventing proliferation of bargaining units

in the health care industry”. S. Rep. No. 766, 93d Cong., 2d Sess. 5

(1974); H.R. Rep. No. 1051, 93d Cong., 2d Sess. 6-7 (1974). In NLRB

v. Frederick Memorial Hosp.,691 F.2d 191 (4th Cir. 1982), the NLRB

sought enforcement of an order finding a unit composed of registered

nurses to be appropriate at Frederick Memorial Hospital. The court

of appeals rejected the Board’s findings because the NLRB did not

give due consideration to the issue of proliferation of bargaining units

at the hospital. 691 F.2d at 194.

The underlying decision of the Board, Frederick Memorial

Hosp., Inc., 254 N.L.R.B. 36 (1981), had upheld the Regional

Director’s determination that the registered nurses at Frederick

Memorial Hospital possessed a sufficient community of interest,

separate and apart from all other professionals, to justify their own

unit for bargaining purposes. The NLRB rejected, however, language

in the Regional Director’s decision which suggested that the RN unit

sought by the union was “per se appropriate”. The Board stated:

17

We do not rely on, however, any comments in the

Regional Director’s decision that may be taken as a

conclusion that the registered nurse unit sought here

was per se appropriate. Our conclusion on the ap-

propriateness of the unit is based on the particular

circumstances involved here.

Id. at 39 n.12 (emphasis added).

The Court of Appeals for the Fourth Circuit approved the

detailed analysis undertaken by the Board in the underlying case. The

court refused to enforce the decision, however, because neither the

Regional Director nor the Board addressed the question of prolifera-

tion when considering the appropriateness of the RN unit. The court

said:

The Board may not depend solely on the traditional

community of interest test when making a unit deter-

mination for health care institution employees. As

other courts have held, the Board must give due con-

sideration to the congressional admonition against

proliferation. Furthermore, a Board decision must

clearly explain “the manner in which its unit deter-

mination ... implement[s] or reflect[s] that admoni-

tion....”

A reviewing court, no less than the Board, is bound to

give effect to the congressional admonition against

proliferation. The court cannot in the first instance

adjudicate whether certification of a unit is consistent

with congressional intent. Nor can the court adequate-

ly review the Board’s decision and order unless the

Board clearly discloses why certific tion of the unit

comports with the necessity of preventing prolifera-

tion.

691 F.2d at 194 (citations omitted).

The Fourth Circuit recognized in its Frederick Memorial Hosp.

decision that a unit of registered nurses might not be appropriate in

18

other hospitals. In this respect, the Fourth Circuit’s opinion is clearly

at odds with the Seventh Circuit’s decision sanctioning the Board’s

new per se approach for bargaining unit determinations. Similarly,

the Fourth Circuit requires consideration of the congressional admoni-

tion against proliferation in each unit determination and a specific

explanation of why certification of a particular unit in each case serves

the congressional admonition against unit proliferation. This holding

of the Fourth Circuit is again clearly at odds with the Seventh Circuit’s

decision. See American Hosp. Ass'n v. NLRB, 899 F.2d at 658 ("(The

admonition] is cautionary rather than directive.").

The Fourth Circuit’s recognition of the importance of adhering

to the congressional admonition against proliferation is shared by

other courts of appeals. See, e.g., Trustees of the Masonic Hall &

Asylum Fund v. NLRB, 699 F.2d 626, 632 (2d Cir. 1983); NLRB v.

HMO Int’l/California Medical Group Health Plan, Inc.,678 F.2d 806,

808 (9th Cir. 1982); St. Anthony Hosp. Sys., Inc. v. NLRB, 884 F.2d

518, 519-20 & n.3 (10th Cir. 1989). Such an approach to bargaining

unit determinations is preferred over the abdication of responsibility

for proliferation exemplified by the Seventh Circuit’s treatment of the

NLRB’s Final Rule in this case. It is the district court in this case

which correctly concluded that the Board by “designat[ing] an ab-

solute number of appropriate units and mandat[ing] a particular

division of the workforce was not responsive to Congress’ express

concern". 718 F. Supp. at 716.

D. The Board’s Rule Will Promote A Proliferation

Of Organized Units Within Acute Care Hospi-

tals And Multiply Costs For Hospitals Already

Faced With Financial Difficulties

The Board’s Rule could not have come at a worse time for acute

care facilities within Maryland. A recent financial report issued by the

MHA reveals that forty-two percent of Maryland hospitals suffered

operational losses in the twelve month period ending June 30, 1990,

as compared with thirty-seven percent the previous year. Twenty-nine

percent of the hospitals incurred losses from operations in both 1989

and 1990. The MHA’s report follows on the heels of a February, 1990

report of the Maryland Health Services Cost Review Commission

which describes the financial performance of Maryland hospitals

19

during 1989 as “generally negative - operating and total profits are

down - return on total assets is essentially unchanged, and long-term

debt has increased” .4

The Board has stated that it did “carefully consider the Congres-

sional admonition against proliferation” during its rulemaking

proceeding and it maintains that its Rule mandating eight units does

demonstrate a concern for proliferation. NPR II, 53 Fed. Reg. 33,933.

It does not appear, however, that the Board examined the costs of

proliferation to acute care hospitals when it decided to move away

from its conclusion in St. Francis Hosp., 271 N.L.R.B. 948 (1984),

that only a broad professional bargaining unit and a broad nonprofes-

sional unit are appropriate within acute care hospitals unless a smaller

unit is justified on the basis of the Board’s disparity-of-interests test.

There are eleven acute care hospital members of the MHA which

currently have employees represented by unions. The administration

and negotiation of collective bargaining agreements with these unions

obviously create additional costs for each hospital. Administrative

costs are substantial even where there is only one organized unit at a

facility. For example, Greater Baltimore Medical Center has assigned

one full time equivalent to the administration of its contract with

District 1199E. The Director of Personnel also devotes substantial

time to the administration of the hospital’s contract with the repre-

sentative of the hospital’s service and maintenance employees. The

hospital estimates that approximately $55,000 in direct labor costs are

devoted exclusively to administration of the union agreement.

Other Maryland hospitals are likewise incurring extensive costs

in administering union agreements at their facilities. For example,

Bon Secours Hospital’s service and maintenance employees are rep-

* The MHA report showed that the average operating margin of hospitals in

Maryland fell from 1.0 percent to 0.9 percent. The study also showed that Maryland

hospitals experienced a net profit decline of $7 million. See Financial Condition

Report, Second Quarter, Maryland Hospital Association Information Services, No.

10, 1990. The Maryland Health Services Cost Review Commission is responsible

for monitoring hospital charges within Maryland. Its February, 1990 report shows

that Maryland hospitals had an operating margin of just .38 percent in 1989, down

from .88 percent in 1988. See Report on the Financial Condition of Maryland

Hospitals, Health Services Cost Review Commission (Feb. 1990).

20

resented by Hospital Employees Local No. 1273, an affiliate o. the

Laborers International Union. Bon Secours’ administrative costs have

increased because of substantial differences in the union’s health

insurance plan and the hospital’s program, including differences in

benefits and procedures under each plan. The hospital also reports

that eligibility for leave is different for union and nonunion employees.

Vacations and holidays differ for each group. Internal grievance

procedures must be administered differently for union and nonunion

employees.

Contract negotiations with Local 1273 also substantially in-

crease the hospital’s administrative costs. The most recent negotia-

tions with Local 1273 involved eight sessions lasting approximately

eight hours each day. Five members of management sit on the

negotiating committee with a sixth person available for benefits con-

sultation. The hospital brings an attorney in for the final bargaining

session which again adds to the cost of negotiations. The hospital

estimates that it expended at least $13,000 during its contract negotia-

tions with Local 1273. This estimate does not include the hospital’s

preparation for negotiations which includes meetings with all depart-

ment managers.

A strike plan is also developed at Bon Secours when negotiations

begin on a new contract and such preparations again are time consum-

ing and costly. Strike planning involves all 35 department heads,

upper management, the COO of the hospital and the personnel

manager. The hospital estimates that there are 80-90 hours involved

in strike planning. During its most recent negotiations with the union,

the hospital received a § 8(g) notice which obviously enervated the

hospital’s contingency plan for strikes. Firss!ly, Bon Secours Hospital

estimates it may spend 50-55 hours in implementing the new contract.

Personnel must meet with managers to explain any changes in the new

agreement and there is additional administrative time involved with

implementing the details of new economic provisions.

The Johns Hopkins Hospital has also devoted substantial time

and resources to administering its service and maintenance unit con-

tract with District 1199E. It estimates that the direct salary cost of

administration of the contract in 1990 will be at least $50,000. This

cost estimate includes salaries for Human Resources personnel only.

21

It does not include the cost of administering the benefits component

of the contract or administrative costs relating to the involvement of

nursing directors and other managers within the hospital. Negotia-.

tions over the agreement require additional costs including legal fees.

There are eight people on the negotiating team and each negotiation

requires extensive preparation. The hospital estimates its total expen-

ditures during a year when negotiations occur are at least twice that of

a normal year.

Sinai Nospital also has a contract with District 1199E which

covers its service and maintenance employees. The hospital estimates

its annual costs for administering the contract to be approximately

$38,000 a year. During contract negotiations, the Director of Person-

nel becomes heavily involved in preparing for and participating in the

negotiations. The cost of the director’s time which is devoted to the

negotiations is approximately $10,000. The total cost for negotiations

is substantially more, however, because the Vice President of

Employee Relations also gets involved in the negotiations. Prepara-

tions for contract negotiations begin four to five months before the

contract actually expires. The negotiating team conducts eight to ten

meetings with its department heads to develop a cosisolidated ap-

proach to the negotiations. Thus, there is substantial time devoted to

negotiation issues by individuals who are not actually part of the

negotiating team. Sinai Hospital also prepares a strike contingency

plan which involves the collective input of ten to fifteen people

including the Vice President of Employee Relations and various

department heads. All of this effort must be factored into any analysis

of costs for the hospital.

The Francis Scott Key Medical Center in Baltimore has a con-

tract with AFSCME which represents its service and maintenance

employees including maintenance employees, nursing aides,

housekeeping employees, food service employees, some technicals

within the hospital and geriatric nursing assistants. Preparations for

negotiations at the medical center begin some six to seven months

before the start of talks with the union. The preparation involves the

Vice President of Human Resources and two members of her staff.

The negotiating team includes representatives from nursing, a repre-

sentative from the nursing home, a joint housekeeping and dietary

administrator, the Employee Relations Manager, the Vice President

22

of Human Resources and outside counsel. Prior to actual negotiations,

the negotiating team will spend almost two weeks finalizing negotiat-

ing strategy and examining contract demands. Initial preparation by

the team, excluding attorneys’ fees, averages about $8,000 per week.

The negotiations usually involve ten to twelve meetings with the

union. The hospital estimates its costs for actual negotiations could

be as much as $32,000.

Finally, employees at Prince George’s Hospital Center in

Cheverly, Maryland, are represented by three different collective

bargaining representatives. The Professional Staff *<urses Associa-

tion represents registered nurses, assistant head nurses, instructors and

clinical specialists. Hospital Employees Local 63, International

Brotherhood of Firemen and Oilers, represents service, clerical and

maintenance employees and licensed practical nurses. PG House

Staff Associates represents interns and residents at the hospital. To

complicate matters, District 1199E has petitioned the NLRB to repre-

sent hospital technicals at Prince George’s Hospital Center who are

not covered under the Local 63 contract.

Prince George’s Hospital Center is a part of Dimensions Health

Corporation. The corporation uses the same core team of negotiators

for negotiating the contracts with Local 63 and the nurses union but

each contract is negotiated separately. Staff salary costs of the

negotiating team involved in the negotiations amount to almost $2000

a day. The bargaining team includes the Senior Vice President of

Human Resources, the assistant administrators for human resources

of the hospitals in the corporation, and other appropriate ad-

ministrators. The corporation has scheduled fifteen full days for its

reopener negotiations with the nurses union and costs could run over

$30,000 for these negotiations. This figure does not cover the cost of

replacing the nurses sitting across the table from the hospital ad-

ministrators for eight hours a day during the negotiations. The hospital

must pay both the nurses on the union’s negotiating team and their

replacements at each facility.

At Prince George’s Hospital Center, the basic salary cost for

administering the three separate contracts is $60,000 a year. This

estimate includes only the time of the assistant administrator and the

employee relations officer. It does not include the salary cost of the

23

other managers and executives who must be involved in resolving

contract interpretation issues, grievance resolution hearings, ongoing

meetings with uuion leadership and follow-up meetings with the

department managers and executives. The hospital estimates that

these additional salary expenses could be as much as $200,000 a year.

if the hospital has to go to arbitration with any of the unions, outside

counsel is generally involved. Costs then accelerate rapidly because

of attorneys’ fees.

Preparation for negotiations at Prince George’s Hospital Center

occurs on several levels. There are meetings between top executives

and financial officers where top level management examine the

hospital’s financial condition and its negotiating strategies for meeting

bottom line financial costs. At another level, there are general discus-

sions between the negotiating team and the hospital’s senior managers

regarding the goals of the hospital during the negotiations. At a third

level, there is interaction with sixty department managers to review

issues relating to the administration of the old contract and what

changes should be made.

Limitatiotw in each union agreement make administration of

Prince George’s Hospital Center substantially more difficult. Even

though there are similar provisions in the contracts, all three groups

have separate grievance procedures. Shift differentials and weekend

differentials all vary in extent and scope. On call rules also vary which

complicate department managers’ efforts at operating departments

efficiently. There are restrictions on reassignment of employees.

Obviously, more avenues for contract violations are open because the

hospital is dealing with three separate units and the possibility of

inadvertent misapplication of policy. Payroll is an administrative

nightmare with different pay policies and scales as well as differences

in accrual of vacation time and leave options.

Negotiations with unions and the administration of union con-

tracts create substantial costs for each Maryland hospital which has

any organized bargaining units. These costs do not include the dis-

ruption which can occur from strikes or from preparation for strikes.

Many of the hospitals with unions report that they regularly receive

§ 8(g) notices during negotiations. Even during organizing, hospitals

are subject to work stoppages. A recognitional strike can shut duwn

24

a hospital as effectively as a strike over economic matters during

negotiations.

The Board’s Final Rule with its provision for eight different

bargaining units is a catastrophe for union and nonunion hospitals

alike. Those hospitals which are already experiencing increased costs

from administering and negotiating one or more contracts with unions

have no doubt that the Board’s new Rule will multiply those costs

should other units within their hospitals become organized. Other

hospitals will eventually be affected by the Rule because unions are

poised to take advantage of the prescription for proliferation which is

built into the structure of the Final Rule.°

The Board’s Rule ignores the increase in costs which will be

visited upon hospitals after implementation of the per se bargaining

unit rule. The impact of proliferation cannot be measured simply by

counting the number of hospital units that ultimately might be created

by operation of the Final Rule. Even the addition of one unit could

place a serious burden on hospitals already substantially burdened

with costs associated with negotiating and administering union agree-

ments. The administrative costs outiined above could be doubled,

tripled or, in the worst case scenario, octupled by operation of the

Board’s Rule. Instead of having to administer a broad service and

maintenance unit with just one union, hospitals organized under the

new Rule cay have to negotiate with three different unions and

administer three separate contracts. The Board has given short shrift

to the congressional admonition against proliferation and hospitals in

Maryland will pay the consequences.

E. The Board’s Rule Is Arbitrary And Capricious

Because It Applies To All Hospitals In

Maryland Regardless Of Their Size And The

Diversity Of Services Offered At Each Facility

5 The National Union of Hospital and Health Care Employees recently an-

nounced that it would triple its 28,000 member dues in order to finance a massive,

nationwide organizing campaign in 1991. The union expects this Court to approve

the Board’s Final Rule and, in response, it will add 400 more organizers to undertake

what the union calls “the largest mobilization for organizing ever undertaken by the

American labor movement.” See 213 Daily Labor Report (BNA) at p. A-18(11-2-90).

25

The Board has concluded that its Final Rule should apply to all

acute care hospitals regardless of hospital size and the variety of

services offered by individual institutions. While conceding that the

health care industry is comprised of a “multiformity of individual

constituent institutions”, the Board attempted to justify the application

of a per se rule to all hospitals by dismissing the differences among

acute care hospitals as merely “minor differences”. See NPR II, 53

Fed.Reg. 33,932. To describe the diversities in health care facilities

as only minor differences is extremely myopic. The Board’s decision

to apply the Rule to all acute care hospitals is arbitrary and capricious

because it ignores the impact of size and the complexity of services

within each facility on the community of interests of employees at

each facility.

Member hospitals within the MHA are extremely varied in size.

For example, Johns Hopkins has over 6,000 employees and 952 beds

while a rural hospital like Kent & Queen Anne’s Hospital has 300

employees and only 64 beds. Johns Hopkins’ operating budget is over

20 times greater than the operating budget of Kent & Queen Anne’s

Hospital. App., infra, p. 6a. Johns Hopkins has over 1,500 registered

nurses while Kent & Queen Anne’s Hospital employs approximately

80 registered nurses. Similarly, the University of Maryland Medical

System ("UMMS") in Baltimore, Maryland, has 747 beds while the

Edward W. McCready Memorial Hospital ("McCready Memorial")

in Crisfield, Maryland, has 41 beds.

Size is not the only difference between large urban institutions

like Johns Hopkins and UMMS and smaller rural hospitals within

Maryland. Johns Hopkins and UMMS are tertiary care facilities with

many departments providing specialized care to patients with severe

injuries and illnesses. Health care professionals assigned to these

specialty units are likely to have more in common with each other than

with similarly licensed professionals within the hospital. For ex-

ample, registered nurses assigned to the oncology department within

Johns Hopkins are likely to have more in common with the social

workers in the department than with registered nurses in other depart-

ments of the hospital. Similarly, health care professionals in the shock

trauma center at UMMS or in the cancer center will undoubtedly have

special interests arising out of their employment in such tertiary care

units which would undercut the assumptions underlying the Board’s

26

per se rule. Nurses within the neonatal unit at St. Agnes Hospital may

have more in common with the doctors, respiratory therapists and

physical therapists working in the unit than with nurses providing

general patient care at St. Agnes. The Board’s assumption that

registered nurses all have similar working conditions and interests is

extremely naive when viewed in the context of large metropolitan

hospitals with specialized units.

In contrast, rural hospitals like Kent & Queen Anne’s Hospital

and McCready Memorial are much smaller community hospitals.

Although each hospital provides quality care to its patients, it does not

have the resources to staff and equip a tertiary care unit. Thus,

registered nurses within smaller hospitals may in fact have similar

duties. Nevertheless, the smaller size of these hospitals increases the

integration and interaction between nurses and other allied health

professionals throughout the hospital. This is also true of service and

maintenance employees in a small hospital. The limited resources of

the smaller hospital may require employees to perform a number of

different service and maintenance functions which make the Board’s

mandated division of service and maintenance employees into a

technical unit, a skilled maintenance unit and a nonprofessional

employee unit arbitrary and capricious as it is applied to a smaller

facility.

The Board’s Rule also ignores the differences between profes-

sionals in psychiatric units or rehabilitation units within acute care

hospitals. The Board has stated that to the extent that the acute care

hospitals have psychiatric sections, these hospitals are not excluded

from the application of the Rule unless the psychiatric sections

predominate. 53 Fed. Reg. 33,930. Thus, registered nurses working

within psychiatric units at acute care hospitals would be included in

the RN unit even though they are giving more specialized care to

patients than registered nurses working with patients in the general

treatment areas of the hospital. Similarly, the Rale ignores hospitals

which have rehabilitation units. In rehabilitation departments, social

workers, physical therapists, occupational therapists, psychologists

and registered nurses all work together to help patients with traumatic

injuries cope with the necessary changes in their life style. The Rule

mandates that nurses within such a unit be set apart from other

professionals in an all RN bargaining unit regardless of the similarities

27

in terms and conditions of employment between these nurses and other

allied health professionals in the rehabilitation unit.

The Board’s rationale for adopting its Final Rule for acute care

hospitals makes even less sense when it is contrasted with the Board’s

stated reasons for excluding nursing homes from the application of the

Rule. The Board concluded that the Rule should not apply to nursing

homes because there were not only substantial differences between

nursing homes and hospitals but “significant differences between the

various types of nursing homes which affect staffing patterns and

duties”. 53 Fed. Reg. 33,928. The Board said:

In the absence of a measure of uniformity of operation,

it would be difficult to establish uniform rules with

respect to appropriate bargaining units.... We there-

fore conclude that it is best to continue a case by case

approach with respect to nursing homes."

Id. at 33,928-33,929.

It is amazing that the Board found differences between nursing

homes to be significant enough to merit continuation of the case by

case unit determination process while the many differences between

acute care hospitals were deemed to be “minor” differences. The

Board’s reasoning is arbitrary and capricious in this respect and will

only result in disruption and upheaval in acute care hospitals if the

Rule is allowed to be implemented.

F. The Board’s Rule Is Arbitrary And Capricious

Because It Ignores The Integration And Interac-

tion Of Health Care Employees Within

Maryland Hospitals

The Board’s Final Rule ignores the trend toward increased

integration of professionals in Maryland hospitals. The Rule ignores

the increased focus on team care within Maryland hospitals and

established mechanisms for collaborative care within each hospital.

The examples of such interdisciplinary concepts for patient care and

the integration of professionals within Maryland hospitals are

numerous. The Final Rule, however, will not allow any hospital to

demonstrate that its team approach to health care makes the Board’s

mandated bargaining units inappropriate for its facility.

28

Hospitals within Maryland almost uniformly utilize various

strategies for collaborative care of patients within their facilities.

Whether the planning device or concept is labeled “critical path”,

“collaborative committee for patient care”, or “interdisciplinary com-

mittee on patient care”, the result is the same: a team approach to

patient care at the hospital. From the moment the patient enters the

hospital, a plan begins to take shape for effective and efficient care

during the patient’s stay at the hospital. Physicians, registered nurses,

dietitians, pharmacists, social workers, and other allied health profes-

sionals coordinate their efforts and implement an integrated method

for dealing with the patient’s illness. Patients with unique illnesses or

injuries may be scrutinized by an interdisciplinary study group.

Quality assurance is also a coordinated program with extensive inter-

action between health care professionals.

Many hospitals utilize nutrition support teams to supplement the

patient care plan. Doctors, registered nurses and dieticians meet and

discuss nutritional support for enhancing and accelerating the patient’s

recovery. Pharmacists are also consulted so that the patient’s diet is

compatible with prescribed medicines. Doctors may order a special

nutritional assessment to determine the nutritional needs of a patient

with the result that dieticians and the nursing staff must evaluate the

patient’s diet and eating habits.

At the conclusion of a patient’s stay, many Maryland hospitals

will have facilitated resolution of specific issues relating to the

patient’s discharge with the help of discharge planning teams. These

teams usually involve physicians, social workers, registered nurses

and pharmacists who advise patients upon their departure from the

acute care facility and help transiiion them to complete recovery.

Patients in Maryland hospitals are also likely to be exposed to

many health care professionals during their stay at the hospital.

Patients care areas will be visited by physicians, registered nurses,

respiratory therapists, phlebotomists, pharmacists and social workers.

Social workers and mental health counselors wiil be asked to intervene

in cases involving child or spousal abuse. A hospital may use

“rounds”, clinical care committees, or more informal discussion

groups to chart and enhance patient progress.

29

Other departments within acute care hospitals demonstra’e the

integration and interaction of health care professionals. Delivery of

emergency care is very much a team effort with nurses, physicians and

x-ray technologists treating the same patients. Operating rooms have

historically utilized teams of professionals to provide surgical exper-

tise. With increasing frequency, pharmacists are assigned to nursing

units in various satellite pharmacies to increase coordination and

delivery time of medicine to hospital patients. Pharmacists may also

input the doctors’ orders regarding medication and counsel patients

regarding the medicines they will be taking. It is not uncommon for

registered nurses to be working in labs with medical technologists, in

cardiovascular services departments along side cardiovascular tech-

nologists, in rehabilitation units with physical therapists and occupa-

tional therapists, in mental health units with mental health counselors

and social workers, or in radiology departments with x-ray tech-

nicians.

The integration and interaction of health care professionals are

very important factors that should be explored by the Board before it

applies its arbitrary bargaining unit rule to isolate registered nurses

from other health care professionals in an otherwise integrate:

workplace. A case by case adjudication of appropriate bargaininy

units would reveal that health care professionals in Maryland hospitals

participate in common benefit plans and work under uniform person-

nel policies. They have comparable salaries, receive identical bonus

pay, work similar schedules, and receive identical shift differential.

Interdisciplinary training is accomplished through collaborative

practice groups. Health care professionals work together on various

hospital committees and may give in-service training to each other in

their respective specialties. Interaction of employees is stimulated

further by training sessions on more generic subjects such as infection

control, CPR training, stress management, hazard abatement, or EAP

opportunities.

Health care professionals in acute care hospitals in Maryland

cannot be collated and sorted into different “pigeoi\ holes”. An

interdisciplinary approach to patient care is alive and well in Maryland

and the Board’s Final Rule, with its extremely narrow “extraordinary

circumstances” exception, simply does not allow the similarities in

_

30

wages, hours and working conditions of hospital personnel to be

revealed. The Board should continue its case by case approach (just

as it plans to do for other industries), so that the special circumstances

of employment for health care personnel can be illuminated “in each

case .

IV. CONCLUSION

For all the foregoing reasons, and for the reasons stated in the

brief of the American Hospital Association, the decision of the

Seventh Circuit should be reversed.

Respectfully submitted,

By:

JOHN G. KRUCHKO*

PAUL M. LUSKY

KRUCHKO & FRIES

606 Towson Towers

28 West Allegheny Avenue

Baltimore, Maryland 21204

(301) 321-7310

Attorneys For Amicus Curiae

The Maryland Hospital

Association, Inc.

*Counsel of Record

la '

U.S. Department of Justice

Office of the Solicitor General

October 24, 1990

Paul M. Lusky

Kruchko & Fries

Counselors at Law

606 Towson Towers

28 West Allegheny Avenue

Baltimore, Maryland 21204

Re: American Hospital Association v. NLRB

No. 90-97

Dear Mr. Lusky:

In response to your letter of October 23, 1990, I hereby consent

to the filing in the above-captioned case of an amicus curiae brief on

behalf of the Maryland Hospital Association.

Sincerely,

/s/ Kenneth W. Starr

Solicitor General

2a

Dickstein, Shapiro and Morin

October 24, 1990

Paul M. Lusky, Esquire

Kruchko & Fries

696 Towson Towers

28 West Allegheny Avenue

Baltimore, Maryland 21204

RE: American Hospital Association v. N.L.R.B., et al.

No. 90-97

Dear Mr. Lusky:

The American Nurses’ Association consents to your filing of an

amicus curiae brief in the above-referenced matter on behalf of the

Maryland Hospital Association.

Sincerely,

/s/ Woody N. Peterson

WNP:hmp

3a

American Federation of Labor and

Congress of Industrial Organizations

October 29, 1990

Mr. John G. Kruchko

Paul M. Lusky, Esq.

Kruchko & Fries

7929 Westpark Drive

McLean, Virginia 22102

Dear Messrs. Kruchko & Lusky:

Re: American Hospital Association v. NLRB, et al.

(Supreme Court No. 90-97)

The American Federation of Labor and Congress of Industrial

Organizations hereby consents to the timely filing of an amicus curiae

brief in support of the petitioner in the above-referenced matter on

behalf of the Maryland and Virginia Hospital Associations.

Sincerely yours,

/s/ David M. Silberman

Associate General Counsel

4a

Mayer, Brown and Platt

October 17, 1990

Paul M. Lusky, Esq.

Kruchko & Fries

7929 Westpark Drive, Suite 202

McLean, Virginia 22102

Re: American Hospital Association v. NLRB

Dear Mr. Lusky:

On behalf of the American Hospital Association, I hereby con-

sent to the filing of a brief amicus curiae by the Fairfax Hospital

System, et al. in the above-referenced case.

Sincerely,

/s/ James D. Holzhauer

JDH:cm!

Sa

MARYLAND HOSPITALS CHART’

Acute Care No.of No.of Operating Urban

Facility Employees Beds Budget _—v.

(1989 Act.) Rural

Anne Arundel Medical 1782 303 $58,787,400 U

Center

Annapolis, MD

Bon Secours Hospital 980 192 39,744,000 U

Baltimore City, MD

Children’s Hospital & 323 68 13,076,900 U

Center for

Reconstructive Surgery

Baltimore City, MD

Church Hospital 999 216 44,838,000 U

Baltimore City, MD

Francis Scott Key 2200 564 78,092,500 U

Medical Center

Baltimore City, MD

Franklin Square 2313 427 89,553,300 U

Hospital Center

Baltimore City, MD

Good Samaritan of 1211 238 46,583,500 U

Maryland

Baltimore City, MD

Greater Baltimore 2200 352 93,858,200 U

Medical Center

Baltimore County

Harbor Hospital Center 1377 283 $68,996,500 U

Baltimore City, MD

' Figures were derived from the most recent data supplied by the Maryland Health

Services Cost Review Commission and, when possible, from data supplied by

individual hospitals.

” ‘The characterization of hospitals as “Urban” in this appendix parallels the

designation “Metropolitan” used by the Maryland Health Services Cost Review

Commission in its data.

6a 7a

MARYLAND HOSPITALS CHART (continued) MARYLAND HOSPITALS CHART (continued)

Acute Care No.of No.of Operating Urban Acute Care No.of No.of Operating Urban

Facility Employees Beds Budget v. Facility Employees Beds Budget v.

(1989 Act.) Rural (1989 Act.) Rural

Homewood Hospital 1055 267 61,035,700 U Dorchester General 363 114 14,511,900 R

Center Hospital

Baltimore City, MD Cambridge, MD

James Lawrence Kernan 299 66 12,723,900 U Kent & Queen Anne’s 300 64 10,543,000 R

Hospital Hospital

Johns Hopkins Hospital 6125 952 257,584,900 U Chestertown, MD

Baltimore City, MD Prince George’s 1800 423 85,227,800 U

Liberty Medical Center 811 282 47,733,900 U Hospital Center

Baltimore City, MD Cheverly, MD

Maryland General 1250 213 55,368,500 U Southern Maryland 1092 308 54,267,600 U

Hospital Hospital (1988)

Baltimore City, MD Clinton, MD

Mercy Medical Center 1319 290 65,466,800 U Howard County General 1109 194 41,251,000 U

Baltimore City, MD Hospital

Sinai Hospital of 2700 4 467-—=Sfs«*125,923,300 «UU Columbia, MD

Baltimore FTE Edward W. McCready 200 41 4,279,900 R

Baltimore City, MD Memorial Hospital

St. Agnes Hospitalof 2800 430 93,370,600 -U Crisfield, MD

the City of Baltimore Memorial Hospital & 1100 214 37,144,160 R

Baltimore City, MD Medical Center

Union Memorial 1881 349 88,364,600 U Cumberland, MD

Hospital Sacred Heart Hospital 1022 240 33,875,200 R

Baltimore City, MD Cumberland, MD (1988)

University of Maryland 3160 669 211,603,000 U Memorial Hospital 1000 201 31,947,000 R

Medical System Easton, MD

Baltimore City, MD Union Hospital of 619 139 25,272,600 R

Suburban Hospital 1600 282 61,389,600 U Cecil County

Bethesda, MD Elkton, MD

Ka 9a

MARYLAND HOSPITALS CHART (continued) MARYLAND HOSPITALS CHART (continued)

Acute Care No.of No.of Operating Urban Acute Care No.of No.of Operating Urban

Facility Employees Beds Budget v. Facility Employees Beds Budget v.

(1989 Act.) Rural (1989 Act.) Rural

Fallston General 662 152 25,377,500 U Montgomery General 1045 229 39,079,900 U

Hospital (1988) Hospital

Fallston, MD Olney, MD

Frederick Memorial 1338 235 45,385,700 K Calvert Memorial 400 157 18,803,200 K

Hospital Hospital

Frederick, MD Prince Frederick, MD

Frostburg Community 14% 47 5,430,000 K Baltimore County 1325 220 47,262,600 U

Hospital General Hospital

Frostburg, MD Randallstown, MD

North Arundel General 1304 245 §1,335,700 U Leland Memorial 416 107 18,700,200 U

Hospital Hospital (1988)

Glen Burnie, MD Riverdale, MD

Washington County 1706 404 $7,281,700 K Shady Grove Adventist 1371 233 54,539,800 U

Hospital Hospital (1988)

Hagerstown, MD Rockville, MD

Harford Memorial 610 205 23,413,800 K Peninsula General 1767 3600 64,438,100 K

Hospital (1988) Hospital Medica!

Havre De Grace, MD Center

Physicians Memorial 44% 104 19,078,300 K Salisbury, MD

Hospital Holy Cross Hospital of 2000 452 467,002,700 U

La Plata, MD Silver Spring

AMI Doctors’ Hospital 880250) 51,657,400 Rk Silver Spring, MD

Lanham, MD Washington Adventist 1487 300 70,995,700 U

Greater Laurel 738 184 28,733,500 UU Hospital (1988)

Beltsville Hospital Takoma Park, MD

Laurel, MD St. Joseph Hospital 2045 415 89,913,100 U

St. Mary's Hospital 447 107 18,139,200 OR Towson, MD

Leonardtown, MD Carroll County General #K2 118 25,080,800 K

Garrett County 323 76 10,964,600 R Hospital

Memorial Hospital Westminster, MD

Oakland, MD

10a

MARYLAND HOSPITALS WITH

COLLECTIVE BARGAINING UNITS

Hospital

Bon Secours

Baltimore City, MD

Greater Baltimore

Medical Center

Baltimore County,

MD

Greater Laurel-

Beltsville Hospital

Laurel, MD

Johns Hopkins

Hospital

Baltimore, MD

Collective

Bargaining

Representative(s)

Hospital Employees

Local Union No.

1273, District Council

of Baltimore &

Vicinity, Laborers’ In-

ternational Union of

North America, AFL-

CIO

District 1199-E, Na-

tional Union of Hospi-

tal & Health Care

Employees - SEIU

Maryland Nurses As-

sociation, Staff Nurses

Professional Chapter

Hospital Employees

Local 63, Internation-

al Brotherhood of

Firemen & Oilers,

AFL-CIO

District 1199-E, Na-

tional Union of Hospi-

tal & Health Care

Employees - SEIU

Categories of

Employees

Represented

Service, main-

tenance, some

clerical

employees

Service and

maintenance

employees

RNs, assistant

head nurses, in-

structors, clini-

cal specialists

Service, cleri-

cal, main-

tenance

employees,

LPNs

Service and

maintenance

employees

lla

MARYLAND HOSPITALS WITH

COLLECTIVE BARGAINING UNITS

Hospital

Howard County

General Hospital

Columbia, MD

Francis Scott Key

Medical Center

Baltimore City, MD

Liberty Medical

Center

Baltimore City, MD

Maryland General

Hospital

Baltimore City, MD

(continued)

Collective

Bargaining

Representative(s)

Local 27, United Food

and Commercial

Workers Union

Local 27

American Federation

of State, County, and

Municipal Employees,

Council 67 and Local

44

District 1199-E, Na-

tional Union of Hospi-

tal & Health Care

Employees - SEIU

Maryland Nurses As-

sociation

District 1199-E, Na-

tional Union of Hospi-

tal & Health Care

Employees-SEIU

Categories of

Employees

Represented

RNs

Nonprofes-

sional

employees

Service and

maintenance

employees,

LPNs

Service and

maintenance

employees,

LPNs

RNs, on-call

float pool nur-

ses

Service and

maintenance

employees

12a

MARYLAND HOSPITALS WITH

COLLECTIVE BARGAINING UNITS

Hospital

Physicians

Memorial Hospital

La Plata, MD

Prince George’s

Hospital Center

Cheverly, MD

Sinai Hospital of

Baltimore

Baltimore City, MD

(continued)

Collective

Bargaining

Representative(s)

Southern Maryland

Healthcare Employees

Association, Local

1182, Service

Employees Interna-

tional Union, AFL-

ClO

Maryland Nurses As-

sociation, Staff Nurses

Professional Chapter

Hospital Employees

Local 63, Internation-

al Brotherhood of

Firemen & Oilers,

AFL-CIO

PG House Staff As-

sociates

District 1199-E, Na-

tional Union of Hospi-

tal & Health Care

Employees-SEIU

Categories of

Employees

Represented

RNs and LPNs

RNs, assistant

head nurses, in-

structors, clini-

cal specialists;

Service, cleri-

cal and main-

tenance

employees,

LPNs;

Interns, Resi-

dents and Fel-

lows

Service and

maintenance

employees