St. Anthony Hosp. Systems, Inc. v. N.L.R.B.
| Decision Date | 08 August 1989 |
| Docket Number | I,AFL-CI,No. 87-1229,87-1229 |
| Citation | 884 F.2d 518 |
| Parties | 132 L.R.R.M. (BNA) 2055, 112 Lab.Cas. P 11,382 ST. ANTHONY HOSPITAL SYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. St. Anthony Federation of Nurses and Health Professionals, AFT/FNHP, CFT,ntervenor. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Earl K. Madsen (K. Preston Oade, Jr., with him on the briefs) of Bradley, Campbell & Carney, Golden, Colo., for petitioner.
Charles P. Donnelly (John H. Ferguson, Rosemary M. Collyer, John E. Higgins, Jr., Robert E. Allen, and Elliott Moore with him on the brief) of the N.L.R.B., Washington, D.C., for respondent.
Lawrence Poltrock of DeJong, Poltrock & Giampietro, Chicago, Ill., and David M. Silberman and Laurence Gold, Washington, D.C., for intervenor.
On Petition for Review of a Decision of the National Labor Relations Board.
Before MOORE and ANDERSON, Circuit Judges, and BROWN, * District judge.
In this petition for review St. Anthony Hospital Systems, Inc. (Hospital) challenges a National Labor Relations Board decision ordering the Hospital to bargain with the St. Anthony Federation of Nurses and Health Professionals, AFT/FNHP, CFT, AFL-CIO (Union). Specifically, the Hospital claims the Board's all technical bargaining unit does not satisfy the "disparity of interests" test adopted by this court in Presbyterian/St. Luke's Medical Center v. NLRB, 653 F.2d 450 (10th Cir.1981) (St. Luke's ), modified, Beth Israel Hosp. and Geriatric Center v. NLRB, 688 F.2d 697 (10th Cir.) (en banc), cert. dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982). In addition, the Hospital contends a new election is necessary because the radiologic technologists and registered respiratory therapist I and II positions included in the technical unit more appropriately belong in the professional unit. We do not accept either of the Hospital's claims; consequently, the Hospital's petition for review is denied and the Board's cross-petition for enforcement is granted.
St. Anthony Hospital Systems, Inc. operates two hospital facilities within a ten mile radius in the Denver metropolitan area. In December 1979, the Union petitioned the Board to represent a bargaining unit consisting of the Hospital's 355 technical employees who work at these two facilities. The Hospital, however, contended that the appropriate bargaining unit should consist not only of all of the Hospital's technical employees but some 400 service and maintenance employees as well.
In March 1980, the Regional Director, applying the "community of interests" test, concluded that the appropriate bargaining unit consisted only of technical employees. He therefore ordered an election for this unit. The technical unit employees then voted 147 to 129 in favor of representation by the Union. The Hospital, nonetheless, refused to bargain with the Union. The Union then filed unfair labor practice charges against the Hospital prompting the General Counsel to issue a complaint and move for summary judgment.
Meanwhile, this court decided St. Luke's and held that the traditional "community of interests" standard could not be applied to the determination of bargaining units in the health care field. 1 653 F.2d at 455. We reasoned that for health care facilities the Board must pay heed to the legislative history of the 1974 Amendments to the National Labor Relations Act in which Congress directed the Board to prevent undue proliferation of bargaining units in the health care field. Id. at 453. Given Congress' admonition, we concluded that "traditional factors used in scope determinations 'must be put in balance against the public interest in preventing fragmentation in the health care field.' " Id. at 455 (quoting St. Vincent's Hosp. v. NLRB, 567 F.2d 588, 592 (3d Cir.1977)). Finally, we held that the proper analysis necessitates focusing on the "disparity of interests" between employee groups which inhibits fair representation rather than similarities of interest which the traditional "community of interests" test mandates. St. Luke's, 653 F.2d at 456.
In light of St. Luke's and similar decisions in other circuits 2, the Board--subsequent to the initial unit determination in the case before us--decided St. Francis Hosp., 271 N.L.R.B. 948 (1984) (St. Francis II ), rev'd,International Bhd. of Elec. Workers v. NLRB, 814 F.2d 697 (D.C.Cir.1987). There, the Board formally adopted the "disparity of interests" test for unit determinations in the health care field. 3 271 N.L.R.B. at 953. Because of this change, the Board denied the General Counsel's motion for summary judgment in the instant case and remanded it to the Regional Director for reconsideration consistent with the Board's holding in St. Francis II.
In December 1985, the Regional Director held a second hearing on the appropriateness of the all technical unit. The Director then upheld his 1980 decision approving the all technical unit reasoning that there were sharper than usual differences between the wages and working conditions of the technical employees and those in service/maintenance classifications. The Regional Director also concluded that he need not reconsider the Hospital's challenge as to the nonprofessional status of the radiologic technologists and registered respiratory therapists I and II (respiratory therapists) because the "disparity of interests" test did not affect the statutory definition of professional.
After the Hospital again refused to bargain with the Union, the General Counsel renewed the motion for summary judgment. The Hospital denied the claim of an unfair labor practice contending the bargaining unit was not appropriate. The Board affirmed the Regional Director's application of the "disparity of interests" test and thus granted the motion. In addition, the Board held that the Hospital was not entitled to relitigate the issue of the professional status of the radiologic technologists or respiratory therapists. 4 Consequently, the Board ordered the Hospital to bargain with the Union. The Hospital challenges the Board's ruling in the petition for review now before us.
While the proceedings concerning the appropriateness of the all technical unit continued, related proceedings regarding the breadth of a professional unit at the Hospital were taking place. Initially, in December 1979, the Regional Director certified a professional unit of only registered nurses. The unit elected union representation by a 310 to 172 vote. The Hospital then refused to bargain claiming the unit was too narrow. The Board found that the registered nurse unit was appropriate and held that the Hospital violated the Act by refusing to bargain. Upon review, however, we reversed and remanded the case to the Board for reconsideration in light of the "disparity of interests" test espoused in St. Luke's. St. Anthony Hosp. Sys. v. NLRB, 655 F.2d 1028 (10th Cir.1981), modified sub nom. Beth Israel Hosp. and Geriatric Center v. NLRB, 688 F.2d 697 (10th Cir.) (en banc), appeal dismissed, 459 U.S. 1025, 103 S.Ct. 433, 74 L.Ed.2d 522 (1982).
In August 1985, the Regional Director determined on remand that the appropriate bargaining unit was not the unit of only registered nurses as he had previously determined but a unit consisting of all professionals. The Hospital petitioned the Board for a review of this decision contending that the radiologic technologist and respiratory therapist positions belong in the all professional unit and are therefore entitled to vote in this new election. The Board held that the Hospital raised "substantial and material issues" regarding the professional status of the radiologic technologists. Accordingly, the Board directed that the radiologic technologists be allowed to vote under the challenged vote procedure in the representation election for the all professional unit. The election resulted in a majority of unchallenged votes being cast against the Union; therefore, it was unnecessary for the Board to determine whether the radiologic technologist positions were appropriately classified as nonprofessional.
At the outset, we find the Board's "disparity of interests" test as adopted in St. Francis II comports with our decision in St. Luke's. The Hospital errs in interpreting St. Luke's so rigidly. We are content that in St. Francis II the Board's formulation of its "disparity of interests" test took into account--as we mandated in St. Luke's--the admonition of Congress against the proliferation of bargaining units in the health care field. 271 N.L.R.B. at 953. Thus, when a bargaining unit satisfies the "disparity of interests" test, it necessarily complies with the congressional directive against unnecessary fragmentation of bargaining units. See Southwest Community Health Servs. v. NLRB, 726 F.2d 611, 613 (10th Cir.1984) ().
Our standard of review of the Board's choice of a bargaining unit in the health care field is "whether the Board properly focused on the 'disparity of interests' between employee groups which would prohibit or inhibit fair representation of employee interests." Southwest Community Health Servs., 726 F.2d at 613 (quoting NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 419 (9th Cir.1979)). This standard is more searching than the "arbitrary and without substantial support" standard traditionally applied to unit determinations in non-health care industries. Southwest Community Health Servs., 726 F.2d at 613. The point of this more rigorous standard is to ensure that the Board correctly applies the "disparity of interests" test to bargaining unit determinations in the health...
To continue reading
Request your trial
-
N.L.R.B. v. So-Lo Foods, Inc.
...to "nullify unfavorable elections simply by modifying the job responsibilities of a particular position." St. Anthony Hosp. Sys., Inc. v. NLRB, 884 F.2d 518, 524 (10th Cir.1989). C. The Company also contends that the authorization cards used by the Union do not suggest that the Union enjoye......