# Amicus Curiae Brief — American Hospital Assn. v. NLRB > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0012%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 499 U.S. 606 ## Text | Supreme Count, US, FILE D . NOV 21 i969 @ ; Ga" P FPO, UR. \ CLA, 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 *