Amicus Curiae Brief — American Hospital Assn. v. NLRB

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pan ; NOV 21 1999

UZ JOCENHM F. Barco:

No. 90-97 CL

a ~~~

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 FAIRFAX HOSPITAL SYSTEM

JOHN G. KRUCHKO*

PAUL M. LUSKY

KRUCHKO & FRIES

Suite 202

7929 Westpark Drive

McLean, Virginia 22102

(703) 734-0554

Attorneys for Amicus Curiae

The Fairfax Hospital System

* Counsel of Record

Balmar Legal Publishing Division, Washington, D.C. 20005 (202) 659-3610

i |, Supreme Owurt, 4h;

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i, JR.

246

TABLE OF CONTENTS

I. INTERESTOF THE AMICUS CURIAE .....

Il. SUMMARY OF THEARGUMENT .......

A. The Board’s Rule Ignores The Congressional

Admonition Against Undue Proliferation

Of Bargaining Units In The Health Care

B. The Plain Language Of The Act Requires A

Bargaining Unit Determination In Each Case .

C. The Board’s Rule Is Inconsistent With The

Act Because It Will Deny Fairfax Hospital An

Opportunity To Be Heard On The Appropriate-

ness Of An All RN Bargaining Unit And The

Particular Conditions Of Employment At Fair-

D. The Board’s Rule Is Arbitrary And Capricious

Insofar As It Ignores The Differing Sizes,

Locations And Operations Of Other Hospitals

Within The Fairfax Hospital System ......

Pen Qe ova vg 6 Gs oe os 0 02 0 5' ee

saan

11

15

21

ii

TABLE OF AUTHORITIES

Cases

American Hosp. Ass'n v. NLRB,

718 F. Supp. 704(N.D. 1.1989) .........

American Hosp. Ass'n v. NLRB,

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

Beth Israel Hosp. v. NLRB,

DE “Sesccscccevececes

Big Y. Foods v. NLRB,

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

Caminetti v. United States,

~~~~TL. Con 66660609 ¢ 6 «

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

Defense Council, Inc.,

EES ST Ee

Commissioner of Internal Revenue v. Asphalt Prods. Co.,

hd 6 5 6 56 66 66400 0 3

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

ES ce tt eee ees

Escondido Mut. Water Co. v. La Jolla

Band of Mission Indians

EE ct tt tte te eee

Frederick Memorial Hosp., Inc,

| re

INS v. Cardoza Fonseca,

EEE ee

NLRB v. Frederick Memorial Hosp.,

Goi Fae 191 (40) Cer. 1962) ..... 1... «ee

NLRB v. HMO Int'l/California Medical

Group Health Plan, Inc.,

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

Newton- Wellesley Hosp.,

ee

12, 13

12

12

13

8,9

12,14

8, 10

10

13

—" ts iN se te

TABLE OF AUTHORITIES (continued)

Cases Page

Otis Hosp., Inc.,

I eee 13

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

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

St. Francis Hosp.,

eo 11, 13

Southeastern Community College v. Davis

i a as We le Ce be tae 6 8 12

Steelworkers v. Weber,

ee 14, 15

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

699 F.2d 626 (2d Cir. 1983) ............ 10

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

as 6s «o's» 6 «6 640% 12

United States Postal Serv.,

ee ee 14

United States v. Turkette,

es ean a ep Gh 0a eu 66 13

Statutes, Rules, & Regulations

Tae a ae» 6 ob 66600 «0% 8 4,11

Re i in boo ~ 5 6 oe ee ee 8 14

Notice of Proposed Rulemaking

Re 16

Second Notice of Proposed Rulemaking,

53 Fed. Reg. 33,900(1988) ............ 5,17

Final Rule For Collective-Bargaining Units In the

Health Care Industry,

54 Fed. Reg. 16,336,

29 C.F.R. § 103.30(1989) .............. 1,4

iv

TABLE OF AUTHORITIES (continued)

Page

Miscellaneous

S. Rep. No. 766, 93d Cong., 2d Sess. 5 (1974); H.R. Rep. No. 1051,

oe ES ee eee 8

Note, NLRB Guidelines For Determining Health Care

Industry Bargaining Units: Judicial Acceptance or

Back to the Drawing Board

PU og ce Ce cece st ecess 16

eS ee ee

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 FAIRFAX HOSPITAL SYSTEM

I. INTEREST OF THE AMICUS CURIAE

The Fairfax Hospital System submits its brief as amicus curiae

in support of the Petitioner, the American Hospital Association.!

Petitioner in this matter challenges the legitimacy of the National

Labor Relations Board’s Final Rule for Collective-Bargaining Units

in the Health Care Industry (hereinafter “Final Rule” or the “Rule”).

54 Fed. Reg. 16,347-16,348, 29 C.F.R. § 103.30 (1989). The Fairfax

Hospital System believes it can illuminate the disruption and as-

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

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

(App., infra, 1a-4a).

2

sociated costs that will occur if the Seventh Circuit’s decision vacating

the injunction against implementation of the Rule is upheld. This

amicus curiae brief will deraonstrate the practical impact of the

Board’s Final Rule on acute care hospitals throughout this country.

The Fairfax Hospital System consists of four affiliated nonprofit

hospitals located in the Washington, D.C. suburbs of Northern Vir-

ginia. The hospitals include (1) Fairfax Hospital, located in Falls

Church, Virginia; (2) Fair Oaks Hospital, located in Fairfax, Virginia;

(3) Jefferson Hospital, located in Alexandria, Virginia and (4) Mount

Vernon Hospital, also located in Alexandria, Virginia. The Fairfax

Hospital System employs over 7,000 health care workers. The largest

of the hospitals in the System is Fairfax Hospital with over 4,600

employees. Mount Vernon Hospital has approximately 1,200

employees, whereas Fair Oaks Hospital has 850 employees. Jefferson

Hospital is the smallest of the hospitals within the Fairfax Hospital

System employing approximately 420 individuals. The four hospi-

tals, despite a great disparity in size and complexity of organization,

all come within the definition of “acute care” hospital as set forth in

the Board’s Final Rule.

All employees of the Fairfax Hospital System are currently

nonunion. On January 17, 1990, however, a petition was filed in

Region 5 of the National Labor Relations Board ("NLRB") by the

District of Columbia Nurses Association ("DCNA"). By this petition,

designated Case No. 5-RC-13331 by the NLRB, the DCNA seeks to

represent a unit of approximately 1,200 registered nurses within

Fairfax Hospital. The Regional Director for the NLRB’s 5th Region

has been prevented from taking any action on the petition because of

the injunction issued by the United States District Court for the

Northern District of Illinois on July 25, 1989. The United States Court

of Appeals for the Seventh Circuit vacated the injunction against

enforcement of the Board’s Final Rule on April 11, 1990. The

American Hospital Association gained a stay of that order pending the

decision of this Court on the petition for a writ of certiorari. This Court

granted the >etition for a writ of certiorari on October 9, 1990.

If the Seventh Circuit’s decision is not reversed, however, it is

expected that Region 5 will move quickly to apply the Board’s Final

Rule to the petition filed by the DCNA and certify the proposed unit

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3

of registered nurses as an appropriate bargaining unit without con-

sidering the special conditions of employment at Fairfax Hospital.

Application of the Final Rule will preclude Fairfax Hospital from

exploring the appropriateness of alternative bargaining units during

the representation proceeding. The Seventh Circuit’s decision to

dissolve the injunction against the Board’s Final Rule also raises the

specter of 32 possible units within the Fairfax Hospital System, the

potential for jurisdictional disputes between unions competing for

membership within the System, and the potential for dramatic in-

creases in administrative costs for the Fairfax Hospital System as a

consequence of having to negotiate and administer contracts with

many different unions within the Fairfax Hospital System.

The potential fragmentation of its work force is particularly

alarming to Fairfax Hospital because it operates a highly integrated

health care system which promotes a great degree of contact between

registered nurses and other allied health professionals. The Hospital

utilizes a team approach to health care and is organized along service

department lines rather than artificially according to the various

professions working within the facility. The Hospital’s registered

nurses work side-by-side with physicians, respiratory therapists,

p'ysical therapists, dieticians, occupational therapists, speech

pathologists, pharmacists, social workers, medical technologists, car-

diovascular technologists, radiation oncology technologists, and x-ray

technologists. Many of these allied health professionals share com-

mon managemeat with the registered nurses at the Hospital. They

have similar education, training and licensure requirements. Their

salaries are comparable to the registered nurses at the Hospital and

they participate in common benefit plans of the Fairfax Hospital

System.

The Fairfax Hospital System believes the determination of an

appropriate bargaining unit for any group of organized employees at

Fairfax Hospital must take into consideration the integrated nature of

the Hospital’s staff. Application of the Board’s Final Rule, however,

to the pending representation petition will preclude any adjudication

of the appropriateness of an alternative bargaining unit. Fairfax

Hospital will not have an opportunity to rebut the Board’s conclusive

presumption as to the appropriateness of an all RN unit. The Fairfax

Hospital System is, thus, vitally interested in the issues presented by

4

this case and it supports the position of the American Hospital As-

sociation in »: ting reversal of the Seventh Circuit’s decision.

II. SUMMARY OF THE ARGUMENT

This case presents the important issue of whether the NLRB will

be allowed to promulgate and apply a rule mandating that only eight

bargaining units are appropriate within acute care hospitals regardless

of differences in their size, location or operaiions. The Fairfax Hospi-

tal System contends that the Board’s Final Rule, and its per se

application to all representation petitions relating to acute care hospi-

tals, including the petition for representation of registered nurses at

Fairfax Hospital, is contrary to the congressional admonition con-

tained in the legislative history of the Health Care Amendments Act

of 1974. Further, the Final Rule is in conflict with Section 9(b) of the

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

decide appropriate bargaining units “in cach case”. 29 U.S.C. § 159(b).

The Board cannot exercise its rulemaking authority in a manner which

is inconsistent with the Act. That is exactly the manner in which the

Board has proceeded, however, by promulgating a rule which

precludes individual acute care hospitals from demonstrating that the

special circumstances of employment at their facilities merit con-

_sideration of alternative bargaining units than those determined to be

per se appropriate in the Rule.

The Board’s Final Rule provides for eight bargaining units

within acute care hospitals. This is true regardless of the size or

complexity of operations of any particular hospital. The NLRB makes

clear that the eight appropriate units set forth in the Rule are the only

appropriate units fer bargaining “except in extraordinary circumstan-

ces”. The eight units mandated by the Rule include: “(1) all registered

nurses; (2) all phy» icians; (~) all professionals except for registered

nurses and physicialis, (4) all technical employees; (5) al! skilled

maintenance employees; (6) all business office clerical employees;

(7) all guards; and (8) all [other] nonprofessional employees....” 54

Fed. Reg. 16,347-16,348, 29 C.F.R. § 103.30.

The Board’s “extraordinary circumstances” exception is ex-

tremely narrow. The Board has stated that it will not consider addi-

tional evidence or arguments that a particular hospital varied from the

norm, even if the variation is “highly unusual”. See Second Notice of

5

Proposed Rulemaking ("NPR II"), 53 Fed. Reg. 33,932-33 (1988).

Hospitals bear a “heavy burden” to demonstrate that extraordinary

circumstances exist which make the per se Rule irappropriate. /d. 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 a multi-competent worker,

increased use of ‘team’ care and cross training of employees” would

not be considered as a possible extraordinary circumstance. /d. at

33932. Differences in the sizes of various acute care hospitals, the

variety of services offered by each institution and d.fferences in

staffing patterns among such facilities will also not be given weight

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

at Fairfax Hospital and threatens to disrupt the Hospital’s team concept

for delivery of quality health care at the institution. In effect, the Board

has created a conclusive presumption as to the appropriate bargaining

unit at Fairfax Hospital without affording the Hospital an opportunity

‘o rebut the presumed appropriateness of a separate RN unit which is

‘mplicit in the Rule. The Hospital will be denied a meaningful

opportunity to argue the appropriateness of an alternative bargaining

unit in response to the petition of the DCNA. The arbitrariness of the

Board’s Rule is underscored by its potential application to all acute

care hospitals within the Fairfax Hospital System regardless of their

size or the complexity of services offered at each institution. The harm

visited by the Board’s Final Rule on acute care hospitals like Fairfax

Hospital and on health care systems like the Fairfax Hospital System

can only be avoided by reversal of the Seventh Circuit’s decision and

reinstatement of the district court’s permanent injunction prohibiting

implementation of the Rule.

Il. ARGUMENT

Petitioner in this case, the American Hospital Association, chal-

lenged the Board’s Final 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 its enforcement. American

Hospital 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

6

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.

Because the district court concluded that the Board’s Final Rule

was contrary to the congressional admonition, it did not resolve the

specific issue of whether the Board’s Rule was invalidated by the “in

each case” requirement of Section 9(b), finding only that Section 9(b)

does not entirely foreclose the Board from promulgating rules regard-

ing appropriate bargaining units. 718 F. Supp. at 716. For the same

reason, the district court did not address the American Hospital

Association’s claim that the Rule was arbitrary and capricious.

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. 899 F.2d at 660. 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 congres-

sional admonition against proliferation of bargaining units in the

health care field. Finally, the court of appeals rejected the American

Hospital Association’s argument that the Final Rule was arbitrary and

capricious because it failed to distinguish between “hospitals of dif-

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

The Seventh Circuit’s decision in American Hosp. Ass'n v.

NLRB will have a direct and immediate effect on the Fairfax Hospital

System. If the decision is allowed to stand, the Board will no longer

be prohibited from applying its Final Rule to representation petitions

within the health care industry. The Board will undoubtedly approve

7

the DCNA’s petition for an all RN unit at Fairfax Hospital without

considering the special facts of employment at Fairfax Hospital. The

Board will also not determine whether the application of the Rule

would result in an unnecessary proliferation of units within Fairfax

Hospital and ultimately within the Fairfax Hospital System.

Unless the NLRB’s Final Rule is rejected as invalid, Fairfax

Hospital will not be able to bring to light the special circumstances of

employment at the Hospital. The application of the Final Rule to the

pending petition of the DCNA forecloses the possibility that a unit

other than an all RN unit will be considered as appropriate for

bargaining at Fairfax Hospital. The result will be an unnecessary

fragmentation of employees within the Hospital with registered nurses

governed by different work rules than those applied to other profes-

sionals within the Hospital. The Hospital will be required to ad-

minister different wages and benefit plans for professionals working

side by side. Should different unions organize separate groups of

employees at Fairfax Hospital along the lines suggested by the Final

Rule, the contracts dealing with all such relationships between the

Hospital and the unions will likely expire at different times. Negotia-

tions will also occur at different intervals. The Fairfax Hospital

System's goal of coordinated delivery of health care will likely be

thwarted by internal disputes between unions. Delivery of health care

to Fairfax Hospital’s patients will not be as efficient and may result in

unnecessary harm to these patients.

A. The Board’s Rule Ignores The Congressional

Admonition Against Undue Proliferation Of

Bargaining Units In The Health Care Industry

The Fairfax Hospital System, located as it is within Northern

Virginia, must regulate its 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 admoni-

tion in the legislative history of the Health Care Amendments Act of

1974 that “due consideration should be given by the Board to prevent-

ing 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. Jd. at 194.

The Board’s decision, Frederick Memorial Hosp., Inc., 254

N.L.R.B. 36 (1981), 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. Find-

ing differences in licensure and training requirements, vacation pay,

overtime payments, organizational structure, and other working con-

ditions between the registered nurses and the other professionals, the

Regional Director concluded that a separate unit of nurses was ap-

propriate. In particular, the Board emphasized the fact that the vast

majority of the registered nurses at Frederick Memorial Hospital were

administratively separated into a nursing division which promulgated

its own work policies and procedures. The registered nurses reported

to different supervisors than the other professionals at the hospital and

they also lacked extensive contact with other professionals. 254

‘.L.R.B. at 38.

The NLRB thus rejected the hospital’s attempt to include thirty-

six other health care professionals into the unit of 158 registered

nurses. The NLRB also 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:

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 Board’s opinion in Frederick Memorial Hosp. discussed the

fact that the Regional Director had made a detailed analysis of the

working conditions of the registered nurses and the other allied profes-

9

sionals at the hospital before concluding that the RN unit was ap-

propriate. The Board said:

Here, while the Regional Director issued his decision

in the underlying representation case without the

benefit of Newton-Wellesley, he did receive and con-

sider all the evidence presented by the parties concern-

ing the alleged appropriateness of the petitioned-for

unit of registered nurses. Here, unlike the situation in

St. Francis Hospital of Linwood, all parties at the

hearing in the representation case encouraged the

taking of testimony concerning the appropriateness of

a registered nurse unit. With all evidence having been

adduced that the parties deemed relevant, the Regional

Director in his decision then concluded that the re-

quested unit of registered nurses here was an ap-

propriate unit for collective bargaining.

Id. at 37.

The Frederick Memorial Hosp. decision demonstrates that both

the Regional Director and the Board analyzed the working conditions

within the hospital in detail before concluding that the unit of

registered nurses was appropriate. 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 ad-

dressed the question of proliferation when considering the ap-

propriateness 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 determina-

tion ... implement[s] or reflect{s] that admonition ....”

10

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 adequately

review the Board’s decision and order unless the Board

clearly discloses why certification of the unit comports

with the necessity of preventing proliferation.

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

other hospitals. /d. 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 in each health care

unit determination of the congressional admonition against prolifera-

tion 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 admonitfon 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 and n.3 (10th Cir. 1989). This approach to bargaining

unit determinations is preferable to the abdication of responsibility for

avoiding proliferation exemplified by the Seventh Circuit’s treatment

of the NLRB’s Final Rule in this case.

1]

B. The Plain Language Of The Act Requires A

Bargaining Unit Determination In Each Case

For over fifteen years, the NLRB has determined the ap-

propriateness of bargaining units in acute care hospitals on a case by

case basis. During numerous representation proceedings, the Board

indicated its disdain for generalizations regarding appropriate bargain-

ing units in the health care industry. See, e.g., St. Francis Hosp., 271

N.L.R.B. 948, 953 (1984). Then, on the eve of an organizing drive by

the DCNA at Fairfax Hospital, the NLRB decided to create a rule

which makes an all RN unit per se appropriate in all acute care

hospitals. The Board took such action even though the language of

the National Labor Relations Act mandates a factual! inquiry into the

particular conditions of employment at each hospital before certifying

a unit as appropriate for bargaining.

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) (emphasis added).

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

or the complexity of their organization. In so doing, the Board has

overstepped its rulemaking authority. Its new bargaining unit rule is

directly in conflict with the plain language of the statute. The Final

Rule irrebuttably presumes that certain bargaining units are ap-

propriate without allowing adjudication of substantive issues such as

the community of interests among employees at any particular facility

and consideration of specific facts which might demonstrate that the

Board’s mandated units for bargaining are not appropriate in every

case. Therefore, the Board’s Final Rule must be held to be invalid.

12

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'n v. GTE Sylvana, 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 lan-

guage of the statute itself); see also 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., Inc., 482 U.S. 117, 121 (1987) ("Judicial perception that

a particular result would be unreasonable may enter into the construc-

tion of ambiguous provisions, but cannot justify disregard of what

Congress has plainly and intentionally provided.").

Despite the generally accepted rule of deference to an agency's

interpretation of a statuie, 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.SA., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837 (1984):

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

13

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 demonstrated by the American Hospital Association in its

petition for a writ of certiorari, (see Petition, pp. 14, 17-18), the

legislative history of the National Labor Relations Act gives no

indication that the language in Section 9(b) has a meaning different

from that which is clearly and specifically stated in that section. 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 dis-

covery of an ambiguity in Section 4(e) of the Federal Power Act, 16

U.S.C. § 797(e)); United States v. Turkette, 452 U.S. 576, 580-81

(1981) (rule of ejusdem generis not applicable where no uncertainty

exists as to the meaning of a particular clause in a statute).

The Board’s interpretation of Section 9(b) should be rejected in

light of the plain language of the Act and the Board’s prior conflicting

interpretations of its statutory obligation to determine a bargaining unit

“in each case”. Despite its conclusion now that certain bargaining

units are per se appropriate, the Board has stated many times during

adjudicatory proceedings that generalizations as to proper bargaining

units are not appropriate. See Otis Hosp., Inc., 219 N.L.R.B. 164

(1975) ("Not all health care institutions may be exactly alike.... Be-

tween categories of employees similarly titled, there may be sie-

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

that the diverse nature of the health care industry precludes any

generalizations as to the appropriateness of particular bargaining units,

the Board stated, “No unit is per se appropriate and ... separate

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

14

This Court has rejected a request for deference to an agency

decision 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 Act’s “in each case” language

clearly requires consideration of particular facts in each situation to

determine the appropriate bargaining unit or at least a rule regulating

bargaining unit determinations that provides a meaningful opportunity

for an employer in any particular case to demonstrate that the rule

should not be applied. The Board’s Final Rule should be rejected as

contrary to the clear meaning of the statute.

The Board has construed the “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 com-

munity 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 Nation-

al Labor Relations Board shall decide in each case the unit appropriate

for collective bargaining in the Postal Service....” 39 U.S.C. § 1202.

(emphasis added). There can be no rational reason for a departure

from a case by case analysis of health care industry petitions when the

language of Section 9(b) also mandates that bargaining unit determina-

tions be made “in each case”.

To paraphrase language from then Justice Rehnquist’s dissent-

ing opinion in Steelworkers v. Weber, 443 U.S. 193 (1979), “by going

not merely beyond, but directly against [Section 9(b)’s] language and

legislative history, the [Board] has sown the wind. [Health care

employers and ultimately the American public] will face the impos-

sible task of reaping the whirlwind”. 443 U.S. at 255 (emphasis in

original) (Rehnquist, J., dissenting). The Board’s action in adopting

its Fine! Rule “eludes clear statutory language, ‘uncontradicted’ legis-

lative history, and uniform precedent” and should be invalidated. /d.

at 222.

15

C. The Board’s Rule Is Inconsistent With The Act

Because It Will Deny Fairfax Hospital An

Opportunity To Be Heard On The Appropriate-

ness Of An All RN Bargaining Unit .And The

Particular Conditions Of Employment At

Fairfax Hospital

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

make a bargaining unit determinatien in each case. Prior to proposing

its Final Rule, the Board had always utilized a case by case ad-

judicatory approach in determining appropriate bargaining units.

Such an approach ensures that each hospital has the opportunity to be

heard on the appropriateness of a bargaining unit.

Hospitals which face statutorily imposed obligations with

respect to bargaining with representatives of their employees are at

least afforded the opportunity to create a factual record as to the

appropriateness of alternative units prior to the Board’s determination

as to the appropriateness of any bargaining unit within their hospitals.

Amicus curiae contends that only the Board’s case by case repre-

sentation 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

mandates the appropriateness of certain bargaining units without

affording acute care hospitals any meaningful opportunity to be heard

on the bargaining unit issue. The Board’s Final Rule creates a con-

clusive 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

“e«"raordinary circumstances” exception has been in-

16

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 irrebuttable presumption creates a rule which

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

unit determinations “in each case.” That language mandates con-

sideration of specific facts in each case. Unless interested parties are

afforded an opportunity to rebut the presumptions created by the

Board’s Final Rule, the Board’s rulemaking is contrary to the Act and

is thus invalid. See Big Y. Foods v. NLRB, 651 F.2d 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 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 Industry 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 facility. As mentioned, the Board’s extraordinary circumstan-

ces exception is extremely narrow. In particular, the Board will not

consider increased functional integration between employees, or a

high degree of work contacts between employees as an extraordinary

circumstance meriting relief from the Rule. Similarly, 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 extraordinary circumstance.

Differences in the sizes of acute care hospitals, the variety of services

offered by each institution and differences in staffing pattern among

such facilities will also not be given weight as extraordinary cir-

cumstances warranting relief from the Rule. 53 Fed. Reg. 33,932-33

(1988).

17

It becomes apparent, therefore, that the Board’s Rule, even with

its “extraordinary circumstances” exception, ignores significant dif-

ferences among acute care hospitals in the nation and effectively

denies hospitals employing an integrated health care team the oppor-

tunity to demonstrate that eight different bargaining units would result

in a significant disruption in the delivery of health care at their

institution. Application of the Rule will prevent Fairfax Hospital from

arguing the appropriateness of alternative bargaining units in response

to the pending petition by the DCNA. The very factors that make

Fairfax Hospital unique, i.e., the integration of health care profes-

sionals and the coordinated delivery of health care with the resulting

confluence of common interests between professionals at the facility,

will never be explored if the Board’s new Rule is allowed to be

implemented and applied to the pending petiticn.

The petition for an all RN unit at Fairfax Hospital will undoub-

tedly be approved by the Regional Director for the NLRB without a

specific analysis of employment conditions at Fairfax Hospital. If the

union is successful in convincing registered nurses to vote for repre-

sentation, Fairfax Hospital will be faced with the dilemma of having

to negotiate a collective bargaining agreement which will govern the

working conditions of only a portion of the integrated team of health

care professionals providing patient care services at Fairfax Hospital.

The result will be a fragmentation of the work force, with some

professionals working under work rules governed by the collective

bargaining agreement and others working under the policies of the

Fairfax Hospital System. ;

Fairfax Hospital has instituted a team approach to medical care

within the Hospital and it has integrated the services of its profes-

sionals in implementing this approach. The Board’s Final Rule would

set registered nurses apart in an artificially created labor relations unit

that will undoubtedly impede the coordinated delivery of health care

envisioned by the Fairfax Hospital organization. Work rules

developed out of the negotiations between the union and the Hospital

may also conflict with the coordinated delivery of services currently

utilized by the Hospital. Ultimately, if the Board’s per se Rule is

approved, the Hospital may have to deal with eight separate units of

employees, all working under separate contracts with separate work

rules, separate salary structures, and separate benefit plans, all of

18

which will be monitored and patrolled by cadres of union stewards.

The Fairfax Hospital System believes that such a proliferation of units

is an unnecessary consequence of the union organizing which is now

occurring at Fairfax Hospital. The Fairfax Hospital System believes

that its integrated organizational structure merits consideration of

other possible bargaining units by which the desire for union repre-

sentation, such as it may exist, can be accommodated in a coordinated

and reasonable manner.

The Fairfax Hospital System urges the Court to consider whether

the Board’s Final Rule gives Fairfax Hospital any realistic opportunity

to demonstrate that its coordinated approach to health care delivery

warrants consideration of bargaining units other than the eight rigid

groupings set forth in the Final Rule. For example, registered nurses

at Fairfax Hospital are not set apart into a separate nursing division as

was the case in the Frederick Memorial Hosp. decision. Registered

nurses ("RNs") working at Fairfax Hospital regularly interact with

other health care professionals. The organizational structure of the

Hospital promotes integration between health care professionals

rather than isolation of groups of professionals.

The Hospital also has mechanisms in effect for increasing the

integration between professionals and the delivery of coordinated

health care services to its patients. For example, delivery of emergen-

cy care is very much a team effort with nurses, physicians and x-ray

technicians treating the same patient. Fairfax Hospital utilizes col-

laborative practice committees to enhance the effectiveness of treat-

ment through planning and exchange of professional ideas. More

complex patient care questions are the subject of Grand Rounds where

interdisciplinary groups of professionals meet and discuss the more

challenging patients under their care. The participants in Grand

Rounds may include physicians, RNs, social workers, dieticians and

other allied health professionals. During these sessions, a patient's

illness is studied in detail. Nutritional needs of the patient and post-

discharge concerns are also topics of review among relevant health

care professionals.

This team concept for patient care is repeated in other areas of

Fairfax Hospital. For example, the Hospital uses a special team to

facilitate treatment of pediatric patients. The team consists of a child

19

life specialist, an art therapist, and a social worker who interact with

RNs in Pediatrics. Creative therapists work closely with psychiatric

nurses at the Hospital to enhance recovery of psychiatric patients.

Physicists and dosimetrists in the Medical Physics Department pro-

vide necessary support to the Radiation Oncology Department which

utilizes both RNs and radiation therapists on its staff. Physicists

calibrate the equipment which the Radiation Oncology Department

uses while dosimetrists measure radiation doses which the radiation

therapists and RNs administer and monitor. Pharmacists are assigned

to nursing units in various satellite pharmacies to increase coordina-

tion and delivery time of medicine to the Hospital’s patients. RNs

work with pharmacists and dieticians on nutrition support teams to

assist the recovery of patients. Finally, discharge planning is also a

team effort with social workers, physicians and RNs working together

to coordinate the patient’s return to the community

Registered nurses at Fairfax Hospital are also present in various

specialty areas where they work closely with allied professionals. For

example, RNs work with radiology technologists in the Hospital’s

surgery center. Social workers who are assigned to patients in Cardiac

Therapy interface with RNs and exercise physiologists. Physical

therapists are consulted by RNs regarding the types of exercises most

conducive to recovery of cardiac patients. The Infection Control Unit

of Quality Resource Services is comprised of both RNs and medical

technologists who serve as epidemiologists. Infection Control person-

nel interact with other allied health professionals at the Hospital during

investigations of incidents of secondary infection at the Hospital. In

addition, they provide instruction and education on infection control

to coalitions of health care personnel. The Health Source Department

is comprised of dieticians as well as RNs who provide community

education in Lamaze techniques and nutrition. RNs and sonographers

work together in the Women’s and Children’s Services Division. The

Blood Donor Center utilizes both médical technologists and RNs in

operating the Center. In point of fact, medical technologists and RNs

both participate in blood drives as needed, recruit, interview, schedule

and instruct blood donors, and draw blood.

Registered nurses working with other professionals in various

departments share common supervision. The immediate supervisor

in the department is often an allied health professional who is a

20

non-RN. For instance, the Director of Cardiovascular Services, a

cardiovascular technologist, supervises RNs and cardicevascular tech-

nologists. The Radiation Therapy Director, a radiation therapist,

supervises RNs and radiation therapists within the department. The

head of the Blood Donor Center, a medical technologist, supervises

RNs and medical technologists. The Director of Social Work, a social

worker, supervises bot: RNs and social workers within that depart-

ment. The Director of Radiology, a cardiovascular technologist,

supervises both RNs and x-ray technologists.

The Board’s Final Rule also ignores other factors at Fairfax

Hospital which would undoubtedly weigh in favor of an alternative to

the bargaining unit of registered nurses mandated by the Rule. For

example, RNs and other allied health professionals at the hospital

participate in the same benefit plans, receive comparable salaries,

overtime and bonus pay. RNs and other allied health professionals all

receive shift differential and weekend alternative premium. On call

pay has been extended to RNs and other allied health professionals.

All employees at Fairfax Hespital are also subject to identical person-

nel policies.

Fairfax Hospital’s team approach to patient care clearly will be

disrupted by the per se application of the Board’s Final Rule. The

Final Rule forces professionals working on the same hospital team

into separate units for bargaining. The Rule also increases the

likelihood that these professionals will be represented by different

unions. The hospital’s team concept could be threatened by jurisdic-

tional disputes over which work will be performed by which union.

Conflicting work rules regarding hours of work, overtime and other

working conditions are likely to ‘estroy the cohesion of the hospital’s

team approach to patient care. Ultimately, patient care may be im-

paired by the conflict between union members, thereby creating the

very situation which Congress attempted to avert in drafting the Health

Care Amendments Act and instructing the NLRB to avoid prolifera-

tion.

21

D. The Board’s Rule Is Arbitrary And

Capricious Insofar As It Ignores The ™ffering

Sizes, Locations And Operations Of Other

Hospitals Within The Fairfax Hospital System

The dilemma for the Fairfax Hospital System is likewise

ominous if the Board’s per se Rule is allowed to have application to

all of the hospitals within the System without an individual analysis

of the merits of any particular bargaining unit at each hospital. The

Board’s Final Rule presents the potential for 32 different bargaining

units within the Fairfax Hospital System. This is true even though the

hospitals vary in size from 4,600 employees at Fairfax Hospital to only

_ 440 employees at Jefferson Hospital. Although there are 656 beds at

Fairfax Hospital, there are only 120 beds at Jefferson Hospital. Fair

Oaks Hospital is also a smaller facility with only 160 beds. Fairfax

Hospital employs over 1400 registered nurses whereas Jefferson

Hospital has 136 registered nurses. Other allied health professionals

at Fairfax Hospital number approximately 590 while there are ap-

proximately 66 allied health professionals at Jefferson Hospital.

Patient care services vary from hospital to hospital. The range

of services offered obviously is much more complex and varied at

Fairfax Hospital than can be achieved at Jefferson Hospital. The

operating budget at Fairfax Hospital is almost ten times greater than

that of Jefferson Hospital. Even assuming an all RN unit is appropriate

at Fairfax Hospital, a similar fragmentation of the professional work

force at Jefferson Hospital would not necessarily be appropriate. The

Board’s Rule mandates such fragmentation, nevertheless.

The same mechanisms that are in effect at Fairfax Hospital for

integrating health care professionals are present at the smaller hospi-

tals within the Fairfax Hospital System. These hospitals also utilize

team concepts for delivery of health care. For example, within the

Cardiology Department at Jefferson Hospital, RNs perform many of

the same duties as cardiovascular technicians. Mount Vernon Hospi-

tal employs a “Surgical Suite” which uses an interdisciplinary ap-

proach to surgery with RNs, surgical technicians, physicians, and

physicians’ assistants working together to deliver quality health care.

Laboratory technicians, radiology technicians, RNs, social workers

and physicians work together in Emergency Services at Mount Vernon

22

Hospital. Certain nursing units at Mount Vernon Hospital work

closely with physical therapists, occupational therapists, and speech

pathologists from Physical Medicine and Rehabilitation Services to

coordinate treatment of patients referred to ihe Physical, Medicine and

Rehabilitation Department.

Registered nurses and allied health professionals also work in

service departments where they share common supervision. The

Assistant Administrator for Nursing supervises respiratory therapists

at Jefferson Hospital. Diabetes Management at Jefferson Hospital is

overseen by an RN whose duties include coordinating the activities of

clinical dieticians. The Director of Radiology at Fair Oaks Hospital

supervises RNs and radiology technicians within the Radiology

Department. The Cardiac Catheterization Laboratory at Fair Oaks

Hospital utilizes RNs and cardiovascular technicians. The

laboratory’s supervisor is a cardiovascular icchnician who reports to

a Patient Care Director who is a registered nurse.

The Fairfax Hospital System applies the sme benefit plans,

personnei policies and salary scales to all employ:es in the System.

See App., pp. Sa-7a. All professionals are analyzed »sing a Job

Analysis Questionnaire and each is then assigned to 4 grade within a

designated range. This salary analysis procedure is done at each of

the hospitals in the System and the results are coordinated and ad-

ministered by personnel at System headquarters. The result is a

uniform salary structure which produces comparable pay within the

System for all professionals and common interests in wages and

benefits between RNs and other allied health professionals at each

hospital. The cost to the Fairfax Hospital System of restructuring its

benefit plans, its salary scales, and its personnel policies to accom-

modale 32 different bargaining units would be enormous.

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

to recognize the differences between the various hospitals within the

Fairfax Hospital System and because it prevents any particular hospi-

ta! from arguing the reasonableness of a lesser number of bargaining

units than that which is mandated by the Board’s Final Rule. The

potential problems and disruption which would likely be experienced

within the Fairfax Hospital System will reoccur within other hospital

systems unless the Court overturns the Seventh Circuit’s decision and

23

reinstates the injunction ordered by the district court. A decision

overturning the Board’s Final Rule is needed now before costs and

disruption begin escalating for the Fairfax Hospital System and other

health care institutions in this country.

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

Suite 202

7929 Westpark Drive

McLean, Virginia 22102

(703) 734-0554

Attorneys for Amicus Curiae

The Fairfax Hospital System

* Counsel of Record

APPENDIX

la

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

E | } 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 in the above-referenced case.

Sincerely,

/s/ James D. Hoizhauer

=e

2a

U.S. Department of Justice

Office of the Solicitor General

October 16, 1990

Paul M. Lusky

Counsel

Kruchko & Fries

Counsels at Law

Suite 202

7929 Westpark Drive

McLean, Virginia 22102

Re: American Hospital Association v. NLRB

No. 90-97

Dear Mr. Lusky:

In response to your letter of October 11, 1990, I hereby consent

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

behalf of the Fairfax Hospital System.

Sincerely,

/s/ Kenneih W. Starr

- \ucitor General

3a

Dickstein, Shapiro and Morin

October 23, 1990

Paul M. Lusky, Esquire

Kruchko & Fries

7929 Westpark Drive

Suite 202

McLean, Virginia 22102

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

Fairfax Hospital System.

Sincerely,

/s/ Woody N. Peterson

4a

American Federation of Labor and

Congress of Industrial Organizations

October 16, 1990

Paul M. Lusky, Esq.

Kruchko & Fries

7929 Westpark Drive

McLean, Virginia 22102

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

(Supreme Court No. 90-97) |

Dear Mr. Lusky:

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 Fairfax Hospital System.

Sincerely yours,

/s/ David Silberman

Sa

EMPLOYEE BENEFIT SUMMARY

EMPLOYEE BENEFIT APPLICABLE TO

Regular Regular

Full-Time _ Part-Time

HEALTH & WELFARE

SHARED*CARE:

FREE to full-time employee ............... Yes* Yes*

Kaiser-Permanente Health Plan(HMO)...... Yes* Yes*

Group Health Association(HMO) .......... Yes* Yes*

Dental Insurance:

FREE to full-time employee ............. Yes* Yes*

Life Insurance with AD&D:

PORE OP GIIIED occ ccc ccc ec ccccvcce Yes Yes*

Supplemental Life Insurance for

Employees and/or Dependents:

Purchased thru payroll deduction ......... Yes Yes**

Disability Income Insurance:

FREE to employee Yes No

Retirement Program: FREE to employee

working 1000 hours or more/yr .......... Yes Yes

Social Security

(employee contributions matched) ........ Yes Yes

Worker’s Compensation .................. Yes Yes

Unemployment Insurance ................. Yes Yes

Employee Health Program ................ Yes Yes

*For full-time employees some benefits may require contributions such as family plan

for hospitalization and dental insurance, extra cost for HMO or IPA plans and optional

additional life insurance. Part-time employees (at least 20 hours per week) pay full

premium but at group rates.

** Applicable to part-time employees budgeted 16 or more hours per week.

6a

EMPLOYEE BENEFIT SUMMARY (continued)

PAID TIME OFF (Employees budgeted to

work 15 hours or less per week are not eligible)

Paid Vacations: 10 days increasing to

20 days over 10 years ...............4.. Yes Yes**

Paid Sick Leave: up to 12 days............. Yes Yes**

POS FOOD ccc ccccccccecccscces Yes Yes**

Paid Personal Days Off: 3 days ............ Yes Yes**

Paid Time Off Upon Death of Family

POPPED cows cccccccccccces Yes . Ves

MISCELLANEOUS SERVICES

_CONCERN: Employee

I bn sence ccsesoes vi Yes Yes

Tuition Assistance Program ............... Yes Yes**

Shift Differential & Weekend

ES cess s 6 vc coceen tees Yes Yes

ed ccc cccsesccccceces Yes Yes

Employee Credit Union .................. Yes Yes

Employee Recreation Programs ............ Yes Yes

a eee Yes Yes

FREE Uniforms & Laundry

(cortaim Gepertmenta) ... 1... ccc cccees Yes Yes

Awards for Length offService ............. Yes Yes

Pharmacy Purchases (prescriptions) ......... Yes Yes

Thanksgiving & Christmas Dinners:

eee Yes Yes

Cafeteria: Lower Prices .................. Yes Yes

Group Tax Shelter Annuity Program ........ Yes Yes

Purchase U.S. Savings Bonds by

cn en eck cagpacevecees Yes Yes

Pre-Retirement Counseling ................ Yes Yes

** Applicable to part-time employees budgeted 16 or more hours per week.

7a

FAIRFAX HOSPITAL SYSTEM SALARY RANGES

CRED Sinnscccnsccccccccccencdeces $13.70 - $21.00

Es ood. Cceeecdeeenentl $12.85 - $19.66

Respiratory therapists ............-..--++: $12.84 - $19.63

Advanced pulmonary tech ..............--- $12.84 - $19.63

CREE, ccc ccc cc cccccccccceccs $12.70 - $19.47

Special procedurestech ..............-+-+. $12.70 - $19.43

Radiation Oncology tech .............-++:- $12.44 - $19.04

Ee $12.14 - $24.75

EE ass cc vcaveccccesssesneste $12.14 - $18.57

Peneteer mpedicel techs 2... 2. ccc ccc cccnce $11.47 - $17.59

ace wheeceenenseeeccescenne $11.29 - $17.27

PEE ccedccccccccccececeessasncs $10.86 - $16.67