American Hosp. Ass'n v. N.L.R.B., AFL-CI

Decision Date11 April 1990
Docket NumberAFL-CI,Nos. 89-2604,89-2605 and 89-2622,I,s. 89-2604
Citation899 F.2d 651
Parties133 L.R.R.M. (BNA) 3073, 58 USLW 2613, 114 Lab.Cas. P 12,070 AMERICAN HOSPITAL ASSOCIATION, Plaintiff-Appellee, v. NATIONAL LABOR RELATIONS BOARD, James M. Stephens, Mary M. Cracraft, John E. Higgins, Jr., Dennis M. Devaney, and John C. Truesdale, Defendants, and American Nurses Association, American Federation of Labor and Congress of Industrial Organizations, and Building and Construction Trades Department,ntervening Defendants- Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Brian W. Bulger (argued), Laurence H. Lenz, Jr., Michael W. Duffee, Gail A. Chaney, Daniel S. Kaufman, Katten Muchin & Zavis, Chicago, Illinois; Benjamin R. Civiletti (argued), Venable, Baetjer & Howard, Baltimore, Maryland, for plaintiff-appellee.

Eric G. Moskowitz, Diane Rosse, Norton J. Come, Linda R. Sher, N.L.R.B., Washington, D.C., William G. Kocal, N.L.R.B., Chicago, Ill., for defendants-appellants.

Joel A. D'Alba, Marvin Gittler, Barry M. Bennett, Asher, Gittler & Greenfield, Peggy A. Hillman, Chicago, Ill., Laurence Gold, David Silberman, Michael Fanning, Richard Griffin, George Kaufman, Woody N. Peterson, Dickstein, Shapiro & Morin, Laurence J. Cohen, Victoria Bor, Sherman, Dunn, Cohen, Leifer & Counts, Washington, D.C., for intervenors-appellants.

Lawrence Rosenzweig, Santa Monica, Cal., for amicus curiae, Union of American Physicians and Dentists.

E.J. Holland, Jr., Peggy F. Schmitt, Spencer, Fane, Britt & Browne, Kansas City, Mo., for amicus curiae, Missouri Hosp. Ass'n.

Laurence R. Arnold, Weissburg & Aronson, San Francisco, Cal., for amicus curiae, Federation of American Health Systems.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

POSNER, Circuit Judge.

The National Labor Relations Board, joined by intervening unions, appeals from an order by the district court enjoining the first significant substantive exertion of the rulemaking powers conferred on the Board, almost half a century ago, by section 6 of the National Labor Relations Act, 29 U.S.C. Sec. 156. By "substantive," we mean other than jurisdictional, procedural, or remedial.

Section 9(b) of the Act, 29 U.S.C. Sec. 159(b), directs the Board to determine in each case the appropriate unit for collective bargaining. The rule that the district court enjoined provides that, save in extraordinary circumstances, the Board will recognize the following, and only the following, eight bargaining units for employees of acute-care hospitals: physicians, registered nurses, other professional employees, medical technicians, skilled maintenance workers, clerical workers, guards, and other nonprofessional employees. Collective-Bargaining Units in the Health Care Industry, 52 Fed.Reg. 25142 (1987) (notice of rulemaking), 53 Fed.Reg. 33900 (1988) (further notice), 54 Fed.Reg. 16336 (1989) (final rule), enjoined, 718 F.Supp. 704 (N.D.Ill.1989). No unit, however, will be certified that has fewer than six employees. The rule is limited to acute-care hospitals, but does not differentiate among them by size or location except insofar as the six-employee minimum may prevent the formation of all eight units in the smallest hospitals. Section 9(b) itself entitles guards to form their own separate unit, 29 U.S.C. Sec. 159(b)(1), so we may assume that the six-employee minimum does not apply to guards (the Board's rule is silent on the question). But a hospital would still have to have a minimum of 43 employees for all eight bargaining units to be recognized in it--one guard plus six employees in each of the other seven units. The statute also entitles professional employees to bargain separately from nonprofessional employees, 29 U.S.C. Sec. 159(b)(1), but there will always be more than six professional employees in a hospital or other facility covered by the rule.

The hospital industry objects to any rule that requires the recognition of more than the statutory minimum of three units--professional employees, guards, and other nonprofessional employees. Which is to say that it objects to any rule at all, since no rule is necessary to confer rights already conferred by the statute.

Labor and management are perennially and systemically at odds over the appropriate number of bargaining units. NLRB v. Res-Care, Inc., 705 F.2d 1461, 1468-71 (7th Cir.1983); Continental Web Press, Inc. v. NLRB, 742 F.2d 1087, 1090 (7th Cir.1984); Note, The National Labor Relations Board's Proposed Rules on Health Care Bargaining Units, 76 Va.L.Rev. 115, 117-18, 121-22 (1990). From organized labor's standpoint, generally the more units there are the better. This is because the smaller and more homogeneous a bargaining unit is, the easier it will be for the members to agree on a mutually advantageous course of collective action, and therefore the more attractive a union will be, unionization being the vehicle for collective action by employees. By the same token, the larger and more heterogeneous the unit is, the harder it will be for the members to agree on a common course of action. The diversity of, often amounting to conflict between, the interests of the members of a large and heterogeneous unit will make collective action difficult, so it will be hard for a union to gain majority support in such a unit or, having gained it, to use it to bargain effectively (for example, by making a credible threat to strike). This is the union's perspective; the employer's perspective is different. The more units there are, the more costly it will be for the employer to negotiate collective bargaining contracts. And work stoppages will be likelier, because there will be more separate decision-making centers each of which can call a strike, and because majority support for a strike call is more likely the more homogeneous a unit is and hence the likelier all members are to benefit if the union wins.

In making unit determinations the Board is thus required to strike a balance among the competing interests of unions, employees (whose interests are not always identical with those of unions), employers, and the broader public. The statute, though otherwise nondirective, can be read to suggest that the tilt should be in favor of unions, and hence toward relatively many rather than relatively few units. NLRB v. Res-Care, Inc., supra, 705 F.2d at 1469; but see 29 U.S.C. Sec. 159(c)(5); Continental Web Press, Inc. v. NLRB, supra, 742 F.2d at 1090-91. The statute states: "The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by [the National Labor Relations Act], the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." 29 U.S.C. Sec. 159(b) (emphasis added). It is true that among the rights that the Act explicitly confers on workers is the right not to organize. 29 U.S.C. Sec. 157. But even with the Taft-Hartley amendments this is not the principal right of workers under the National Labor Relations Act. The principal purpose of the Act was and is to protect workers who want to organize for collective bargaining.

In any event, the precise balance among the competing interests is certainly not spelled out in the statute; it is for the Board to decide. NLRB v. Res-Care, Inc., supra, 705 F.2d at 1469; Continental Web Press, Inc. v. NLRB, supra, 742 F.2d at 1090. The decision is particularly difficult and delicate in the health care industry because the work force of a hospital (or nursing home or rehabilitation center) tends to be at once small and heterogeneous. It may include physicians, registered nurses, psychologists, licensed practical nurses, nurses' aides, lab technicians, orderlies, physical therapists, dieticians, cooks, guards, clerical workers, maintenance workers, and others--but often only a few of each. If the desirability (from the union standpoint) of homogeneous units is stressed, even a hospital of average size might have ten or twenty or even more units, each with a bare handful of workers. The cost of the institution's labor relations and the probability of work stoppages would soar. Wages might soar too (depending of course upon competition among hospitals), since proliferation of units fosters unionization and a principal objective of unions is to raise their members' wages. But this is far from certain; workers do not receive wages when they are on strike, and strike-prone workers are worth less to employers.

Work stoppages, heavy bargaining costs, soaring wages, labor unrest--all these are matters of concern in a period of high and rising costs of health care, and indeed, as we shall see, commanded congressional attention even before the tide came in. The sorting out and weighing of these matters are judgmental functions committed to the Board.

The Board's rulemaking power is explicit and broad. Section 6 provides: "The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of [the National Labor Relations Act]." (The reference to the APA was added in 1947; the rest of the provision dates back to the original Act.) The industry does not argue that the power is confined to nonsubstantive matters or has atrophied from disuse, and there is broad although not unanimous agreement in the legal community, which we and other courts have remarked approvingly, that the exercise of the Board's dormant substantive rulemaking power is long overdue. NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765 n. 3, 89 S.Ct. 1426, 1429 n. 3, 22 L.Ed.2d 709 (1969); id. at 769-80, 89 S.Ct. at 1431-32 (concurring opinion); NLRB v. Res-Care, Inc., supra, 705 F.2d at 1466; Continental Web Press, Inc. v. NLRB, supra, 742 F.2d at 1093-94; NLRB v. Majestic Weaving Co., 355 F.2d 854, 859-61 ...

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