National Labor Relations Board v. Frederick Memorial Hospital, Inc.

K.K. HALL, Circuit Judge,

dissenting:

As I cannot agree with the majority’s conclusion that the NLRB did not consider the congressional directive against proliferation of bargaining units in the health care industry when it certified the unit composed of registered nurses at Frederick Memorial Hospital, I must dissent.

That the Board was fully aware of and guided by the legislative directive which sought to prevent proliferation of bargaining units in the health care industry is demonstrated by its reference to Newton-Wellesley Hospital, 250 NLRB No. 86 (1980). In Newton-Wellesley, the Board clearly discussed the congressional intent to prevent the formation of numerous small bargaining units within the health care industry. Furthermore, it established that a bargaining unit composed of registered nurses was justified because significant differences existed between nurses and other health care professionals. By citing this case, the Board indicated its awareness of the congressional directive, but, it determined, as in Newton-Wellesley, that other relevant factors justified the formation of a bargaining unit composed solely of registered nurses.

The factors which the Board found distinguished nurses at the Hospital from other health care professionals at that institution included:

1. nurses are entitled to more vacation;

2. nurses are not paid for overtime;

3. nurses experience substantial differences in working conditions;

4. only nurses see every patient every day;

5. the nursing department is autonomous in terms of policies and procedures;

6. only the nursing department is staffed 24 hours a day, with three shifts;

7. nurses do not have extensive contact with other professionals; and

8. nurses are primarily responsible for the maintenance of patient care. Based upon these factors, a separate bargaining unit for nurses is clearly warranted.

The majority cites several cases from other circuits to support its denial of the Board’s order.1 Notwithstanding the holding of each case, none of the courts found that Congress has legislated a different standard for review of NLRB orders regarding bargaining units in the health care industry. In each case, the court noted that the Board should examine the relevant facts, as well as consider the congressional nonproliferation directive. This is exactly what occurred in the instant case.

Moreover, as Senator Taft, co-sponsor of the 1974 amendment to the National Labor Relations Act, 29 U.S.C. § 152(14), which resulted in the nonproliferation directive, recognized, “the Board should be permitted some flexibility in union determination cases.”2 Similarly, Senator Williams stated that Congress did not “intend to preclude the Board from exercising its specialized experience and expert knowledge in determining appropriate bargaining units,”3 but rather merely admonished it to refrain from undue proliferation of units in the health care industry. Consequently, it is clear that Congress had no intention of entirely restricting the Board’s power in this area.

As the majority notes, the Supreme Court has held that the Board must explain the basis of its decision. This may be done “by reference to other decisions or its general *196 policies ... so long as the basis of the Board’s action, in whatever manner the Board chooses to formulate it, meets the criteria for judicial review.” NLRB v. Metropolitan Life Ins. Co., 380 U.S. 438, 443, 85 S.Ct. 1061, 1064, 13 L.Ed.2d 951 (1965). In the instant case, the Board’s decision reveals a thorough examination of the facts with due consideration given to the congressional admonition against proliferation, as evidenced by its reference to the prior decision of Newton-Wellesley. Nothing more is required.

Accordingly, I would enforce the Board’s decision to establish a separate bargaining unit for registered nurses.

. See majority opinion, note 8, at 194.

. 120 Cong. Rec. 12,944-45 (May 2, 1974).

. 120 Cong. Rec. 22,575 (July 10, 1974).