*2 to bargain practice was held an labor unfair WALLACE, Before KENNEDY and violation of section 8 of the National FERGUSON, Judges. Circuit Relations Act [NLRA], Labor U.S.C. § KENNEDY, Judge: Circuit order, petitions From this the Board our This is an application to enforce an order court for enforcement. of the requiring respondent NLRB HMO HMO’s refusal deciding whether International to cease and desist [HMO] NLRA, bargain or was on the violated the from unfair practices labor and to bargain contrary justified bargaining because with the Medical Registered California narrowly, ques- three unit was defined too Association, Nurses United Nurses Associa- tions must be answered. tion of California repre- UNAC [UNAC]. sented a paid unit of all 1. What deference is be composed registered nurses at NLRB’s definition? many HMO’s California facilities. correctly the law apply 2. Did the Board court,

In this response to peti- HMO’s upholding RN-only the definition of the tion is that bargaining unit was consti- unit? tuted too contrary narrowly, to the law applicable to health facilities. argues HMO apply If the correct the Board did not

that the unit included should have licensed standard, order be legal may the enforced vocational nurses in addition reg- [LVNs] interpretation a correct because istered nurses permitted [RNs]. have certification NLRA would any event? RN-only unit in

HMO employs 90 RNs about and 30 LVNs at 19 California facilities. The LVNs can be answered questions Before these are within a bargaining import includes individually, background other job clerical and categories. technical Relations Act the 1974 National Labor The representative larger for this unit is Amendments gen- must be discussed in a the Service Employees way. International eral Union only way (administrative generally (1971) re-

1. This is 27 L.Ed.2d 735 NLRB, Knitting judicial City view); Spring v. can obtain or administrative review of Co. 1981) (judicial Magnesi- (9th See unit determination. n.l Cir. F.2d NLRB, Casting review). um 401 U.S. Co. v. S.Ct. prior exemption, binding it is on the NLRB in 1974 to Congress amended NLRA it. our hospitals. doing, implemented by cover In so and must be So nonprofit held, in a decision which legislature protection expressly extended the court has workers, Act but it insisted NLRB pertinent history. to health care examines the given recognition Hospital Lynwood, as well that Francis St. faced particular dangers public (9th 1979). F.2d *3 of health care potential disruption from specific guide- not include policy The does minimize dis- way services. to potent One many It how units lines. is not stated found, was to avoid the ruption, Congress without given facility be tolerated in a proliferation bargaining units character- of Taft trenching “proliferation.” on Senator resulting of from the istic other trades of four proposed archetypical limitation approach defining to NLRB’s traditional per facility, the units to be divided units units, analysis, community-of-interest technical, along professional, the lines of homogeneity among to which according clerical, and service and maintenance. job descriptions bargaining within a unit is enacted, and it is These divisions were fewer paramount. Broader units mean thought to be they not clear whether were units, by allowing Congress fewer units broad, narrow, rigid. merely too too too sought provide fewer for work occasions however, clear, What is is that the Board interruptions. af- required develop explicit criteria for reports The committee of both the House nonproli- implementation firmative and Senate admonished that consid- policy feration in health care facilities. “[d]ue given by eration should be the Board to Hospi- it This has not done. St. Francis preventing proliferation bargaining of tal, units inquiry we defined the which the NLRB legisla- in the industry.”2 health care This pursue “focusing upon disparity must purpose important tive remarkable and employee groups of interest between which the Board is directed to consider a prohibit representa- or inhibit their would public settling pri- interest factor in the of of employee interests.” 601 F.2d disputes; purpose vate labor this makes it at 419.

even more important that the Board devel- The Board’s treatment of RN units is op reasoned, non-conclusory method of respect. Having in this instructive aban- statutory intent artic- implementing the presumption its earlier in favor of doned ulation of criteria.3 units, RN-only the Board reverted to legislative community-of-interest analysis,4

Because this commitment traditional nonproliferation explicit legisla requirement still heedless of tive history leading repeal develop approach responsive distinct 2. House 2d Sess. 6 printed Pub. pitals Under the National Labor Relations S.Rep.No.766, bor Relations of priate Bargaining Units in Health Care Institu- 3946, 3950. been ly, Amendments to the National Labor Rela- Its St.L.J. ments to the National Labor Relations Act: the Health Care Field Under the 1974 Amend- tions Act: tions: An tions Nonprofit Hospitals Implementation by widely Welfare, Coverage Board, significance Comm, Analysis Congressional ^[1974] (1975); Health Care (1974); discussed. Act, H.R.Rep.No.1051, 20 B.C.L.Rev. 93d on Educ. and U.S.Code Vernon, of these amendments Cong., S.Comm. on Labor and Under the National La- See Institutions, National Labor Rela- Labor Relations Cong. 2d Sess. Bumpass, Labor, Coverage Nonprofit (1979); Fehe- & Ad.News 93d intent and Appro- Cong., Hos- Ohio Act, has An re- See 3. 4. Adjudication-Rule Making at 922. Act — Administrative Procedure R.B. No. Note, (1975); (1977). (1970); Registered Care bor Board 45 Mo.L.Rev. 348 due Proliferation? Overview Wellesley Hosp., See, Amendments, Marq.L.Rev. History Comment, e.g., Getman & Comment, See Mount Expertise, generally, slip op. Analysis, supra Nurse 250 N.L.R.B. No. Interpretation Goldberg, Airy 60 National Labor Relations at 11-12 note Bernstein, Bargaining 39 U.Chi.L.Rev. Foundation, 70 Dilemma Under the Act, Nw.U.L.Rev. (1981); of the Health 79 Yale L.J. Myth Marq.L.Rev. The NLRB’s Units: Un- 86, p. 253 N.L. Newton- (1977); (1980). 202 La- interest of public to attend care- congressional mandate interest, i.e., fully particular to a public industry. care The Board has openly health ser- minimizing disruptions health care interpretation refused to follow the delivery. vice Board’s It ironic that the U. handed Amendments down S. became analysis community-of-interest Appeals. Allegheny General Court even after categorical more mechanical and (3d NLRB, Hospital v. 608 F.2d the 1974 This has turn Amendments.5 1979)(NLRB to follow refused relevant nearly led perfect record reversals precedent NLRB “re- Third Circuit because in re- Appeals the NLRB the Court of spectfully disagrees” Ap- with Court of view of care health units.6 its peals). Alternatively, the Board claims interpretation refusal to follow the Appropriate Standard Review upon bargaining Amendments as bear ordinarily The Board’s unit decisions is disagreement unit definition over mere *4 will not be absent an overturned abuse “semantics,” presumably and in- therefore See, NLRB, e.g., Corp. discretion. Beck v. consequential.7 290, (9th 1978) 590 (per F.2d Cir. Correctly Did Board the Law Apply 2. the curiam): Here? The issue unit determination is within Board, the particular expertise of the In Hospital, St. Francis the Board was statute, body by vested in that and a by Ninth the reversed the Circuit because rarely Board decision is disturbed. Officer, Board, Hearing by as affirmed the Hence, judicial intervention should be by employer excluded evidence the offered to confined instances where has there issue, to the and be- going been an abuse of discretion. It is not incor- explicitly applied cause the Board necessary that the Board choose most the Amendments, to interpretation rect the unit; appropriate bargaining suffi- it is only, the effect that units of RNs composed

cient if the unit chosen is within professional exclusion of other em- range of units the cir- appropriate under ployees, presumptively were appropriate. cumstances. case, suggested by In this it is not (Citations omitted). This deference Board that such em presumption no was Board however, when the appropriate, ployed and that evidence of the for a has need ignored controlling legal standard. larger permitted That be offered has occurred in this and cases. similar hand, The On repeatedly employer. Board has the other there is tried to follow a traditional community-of-interest analysis no indication in either Brief or in spite mandate to consider the that Regional Record Director or NLRB, 5. See Nathan & Miriam Barnert Memorial (6th 1978) (enforce 588 F.2d 1174 Cir. Ass’n, Hosp. 775, 132, pp. Hosp., granted); 217 N.L.R.B. No. NLRB v. West Suburban ment Members, (1975) Penello, (Kennedy 784 -86 (7th 1978) and (enforcement 570 F.2d 213 Cir. de dissenting) majority’s (criticizing NLRB, reliance on Hosp. nied); St. Vincent’s v. F.2d 567 licensing). 1977) (enforcement denied); Long (3d 588 Cir. NLRB, Hosp. (2d Island Col. v. 566 F.2d 833 Presbyterian/St. 6. Luke’s Medical Center 1977) (enforcement denied) (Friendly, J.), Cir. NLRB, v. (10th 1981) (en 653 F.2d 450 Cir. denied, cert. 435 U.S. 98 S.Ct. 56 Thompson Hosp., Mary denied); Inc. forcement Hosp. (1978); of Roxbor Memorial L.Ed.2d 84 NLRB, v. (enforce (7th 1980) 621 F.2d 858 Cir. NLRB, ough (3d 1976) v. 545 F.2d 351 Cir. NLRB, Hosp. denied); Allegheny Gen. ment v. (enforcement denied). (3d 1979) (enforcement 608 F.2d 965 de Cir. Ass’n, nied); Hosp. Mercy NLRB v. F.2d 22 Newton-Wellesley Compare Hosp., 7. 250 N.L. (2d 1979) (enforcement denied), cert. de Cir. pp. (1980) (“[Ninth nied, R.B. No. Cir- 445 U.S. L.Ed.2d 100 S.Ct. may disagreement approach Ass’n, (1980); with our be Hosp. NLRB v. Sweetwater cuit’s] Presbyterian/St. largely semantic”) with (6th 1979) (enforcement F.2d Cir. Hosp., (criticizing Lyn granted); Hosp. Luke’s Newton-Wellesley). NLRB v. 653 F.2d at n.6 St. Francis wood, (enforce (9th 1979) 601 F.2d 404 Center, Bay denied); Inc. ment Medical It principle prohibiting proliferation. nonprolifera- any weight gave Board per- on a rejection was based likely cir- several policy expressed according to flexibility need ceived particu- above.8 More cuit decisions cited appro- be might than four which more units director nor regional neither the larly, highly with very large employers priate for of interest” applied “disparity Board might fewer be while personnel, diverse Francis mandated our decision St. test providers with for health care necessary nonproli- made the Hospital. work homogeneous more forces. smaller or argument support request of its feration unit, joint and it was for a LVN/RN theory which the unit A under separate serious administrative error decline be eventually legitimately found may adequate this evaluate claim 2(12) is based on sections terms. 152(12), 159(b)(1) 9(b)(1), 29 U.S.C. §§ (1976), professionals in that be Un- Bargaining Upheld Unit Can in a unit with thus not be included Interpretation der a Correct the former.10 the consent of LVNs without Law? the order to possibility that this of the fact that unit’s defini- spite bargaining unit on which bargain, and the law, misapplication tion rests on consistent with rests, may fortuitously be sufficiently scope of the unit broad the 1974 policy the nonproliferation inter- it can also be sustained on correct argue might thought Amendments *5 pretation? enforcement.11 granting petition for Nevertheless, The Board’s in this case is some- position that in other instances what different from procedure appellate it is also a familiar in impermissibly ignored which it has the lower the correctness of that where nonproliferation All the relevant mandate. a determi- depends upon court’s decision court have circuit decisions criticized only jury a could of fact which nation a unit that certifying made, Board for which not been make but has not wholly type within one broad but place court cannot take appellate pro- RNs but not comprehensive, e.g., govern other Like considerations re- jury. in fessionals. This was the case Francis If an St. orders. or- view of administrative professionals in Hospital, only which the other valid as a determination der is relegated professionals” agency were a “residual which the judgment to policy unit. It case that RNs are make and which it often the is authorized to alone made, professionals judicial judgment and techni- a cannot considered LVNs has not rejected an However, Congress cals.9 such be to do service for administra- made purposes of affirm- specific categories judgment. in favor of more basic tive For 134, p. Hosp., portions 217 No. 793 dren’s N.L.R.B. 8. The relevant of the decisions of the ap- hearing (1975); Hosp. examiner are set out below as an of Dominican Sis- St. Catherine’s Kenosha, Wisconsin, Inc., pendix opinion. to this The record shows that 217 N.L.R.B. ters of duties, hiring respect staffing poli- 133, and p. (1975); with to and 787 Nathan Miriam No. Barnert, supra cies, benefits, etc., and the treatment of RNs note 5. “nearly question LVNs at the in facilities more, paid identical.” RNs are requirements and California’s 184, Kyne, 79 v. U.S. Leedom 358 S.Ct. See 10. training licensing and for their (1958); Corp., 210 90 L.Ed.2d Sonotone 3 Appendix appar- infra. stricter. See It is 178, p. (1950). No. 1236 N.L.R.B. nonprolifera- only ent that the of the mention interpretive gloss placed tion mandate an Park, Inc. Preserve Overton Cf. Citizens 11. decision, principle on an NLRB which 413-16, Volpe, 91 S.Ct. 401 U.S. judicially has been invalidated failure to 822-24, (district (1971) 136 court on 28 L.Ed.2d implement congressional intent. Id Secretary, in must determine whether remand spite law, having misinterpreted acted with- of San See National Medical Convalescent 9. authority scope nevertheless and of his 163, slip Diego, op. 254 No. at N.L.R.B. range of statu- decision was within whether his (1981); Family Group, N.L. Doctor Medical choices). torily permissible 22, p. (1976); Newington R.B. No. Chil- orders, Registered and reversing concepts an Nurses Licensed ing no less than its appellate abstract,13 cannot upon court intrude we can- Vocational Nurses Congress exclusively domain which has result would be the same if the say not agency. entrusted administrative applied law. Board had the relevant Corp., SEC v. Chenery U.S. professional status of the purported 454, 459, there S.Ct. 87 L.Ed. 626 If 9(b)(1) RNs for of sections and purposes is a possibility application reasonable 2(12) dispositive, ipso is likewise eo of the differ- produce correct rule would First, that classification must two reasons. result, appro- ent agency a remand to the generic be on an abstract classifi- based not priate.12 all the more important This is cation, analysis rather on a concrete but when devel- agency the court on an relies particular the duties time, op, imple- over workable rules for Second, question.14 even if these RNs are on menting congressional policy. Based appropriately found to professionals be proper the lack of to both attention meaning 2(12), may be included public interest standard embodied after with LVNs a Sonotone election.15 legally mandate and the light of the fact LVNs are in significant particular employ- In aspects here, opposed ees covered to the Platonic and the differences SEIU Friendly, interchangeably, 12. and uses them The "Limited Office” both Decision, Chenery (1968); put 21 Ad.L.Rev. 1 will in same RNs will be unit but ballot Friendly, Chenery separately according Sonotone); Revisited: on Re- Maple Refíections Orders, versal and Remand Administrative Nursing Home, pp. Shade 1457, 228 N.L.R.B. No. Duke L.J. (1977) (even 199. n.5 under traditional community-of-interest test, LVNs case, 13. The ALJ’s reliance this which is Doctor, put unit). Family in same based typical analysis, of NLRB on such traditional findings nearly on identical to those in the generalized licensing bar- factors as here, granted petitioner’s record the Board gaining history, supra; Appendix see note 8 request represent combining LVNs infra, adequate, Hosp. is not see St. Francis A RNs. N.L.R.B. at 121. fortiori such Lynwood, at 601 F.2d given mixed units should be serious considera- rigid category, “Professional” is not a either *6 nonproliferation a under standard. 9(b) 9(b)(l)/2(12) pur- for section or section significant it We believe that the facilities poses, by but rather it should be determined facilities, question outpatient in here are see particular employees really what the do the infra, Appendix disapprove any and we thus See, employer. Hosp., e.g., Middlesex Gen. 239 minimizing of this factor based on Memorial (1978) p. (although N.L.R.B. No. labo- Clinic, Ltd., (1975). 220 N.L.R.B. No. ratory technologists generally pro- considered Conversely, LVNs, ordinarily con- who are fessionals, they given would not case be technicals, may specific sidered not be in cases employer’s because of staffing personnel and again depending they on the work that sort of policies); note 14 infra. do, community-of-in- even under the traditional supra Bumpass, note 20 B.C.L.Rev. analysis. Hosp. terest See Children’s of Pitts- 908-14; supra; at Appendix note 8 infra. burgh, 90, pp. 222 N.L.R.B. No. Chrysler Corp., 14. This was established (1976). pp. (1965): N.L.R.B. No. Chrysler the We believe Board’s decision is a clear, statutory It is from examination of the analysis professional model of the sort of issue, the 2(12) ], definition section that the resolu- [of respect 9(b) with both to section question tion of this certain em- [whether 9(b)(l)/2(12), appropriate in that is health care ployees professionals] are the na- turns on supra; cases. See note 13 note 15 infra. engaged by employees ture of the work the group employees involved. ... a [W]hen Corp., p. No. Sonotone N.L.R.B. being are evaluated to determine whether they professionals, principal are test de- While it is true that usual case pends qualifi- on so much the individual issue Sonotone arises when the union employee predomi- cations of each as on the unit, represent seeks to a or when the mixed they nant character work in which are Board decides combine two classes based on engaged. community-of-interest test, nevertheless, (Footnote omitted). special health care cases there is a mandate for Children, See Lutheran Ass’n for Retarded to consider the this device to NLRB use of 195, p. (where (1975) 218 N.L.R.B. No. comply congressional with intent. categories LVN functionally and RN similar GRANTED, The Petition for Review the LVNs are of between the DENIED, and the the Petition to Enforce sort,16on remand the Board or questionable case is REMANDED to Board. fact clear. points finder must make various issue, 9(b)(1) 2(12) respect With APPENDIX why these would include an explanation respon- performed by tasks Employer establishes that the record person- dent’s employees particular and the at each of employs both RNs and LVNs (RN LVN) policies pro- nel mandate a its facilities. A nurse assigned upon fessional not for to each doctor based classification for RNs and LVNs, experience specialty of the nurse in the or a technical classification for When RNs, further, practices. area in which the doctor LVNs why and not for occurs, vacancy a a is hired based nurse preliminarily the RNs should not be certi- upon experience specialty, her fied in the same as the LVNs with the rather than whether she is an RN or proviso of a election. Sonotone are to major LVN. The nurses’ functions 9(b) respect general With to the more Thus, assist the doctors. the nurses es- definition, issue of where patients waiting cort the rooms precise Board must state in terms how it patients’ take histories and vital proposes modify its traditional communi- the doctors signs. The nurses then assist ty-of-interest analysis congres- so that in the examination or treatment. The sional mandate for of bar- supervi- nurses are under the same basic gaining setting units in the health care will sion and can substitute for each other implemented be in this case.17 vacations. during holding imply should not taken to Our The record also establishes that the bene- that a separate necessarily unit for RNs is by including the RNs sick fits received suspect; simply we position in no leave, vacations, health and welfare and review compliance with the statute absent are the same as those received legal and analysis by factual the NLRB of job LVNs and other classifications cover- the nonproliferation issue. To the extent ed an existing collective-bargaining this postpone- remand is unfortunate discussed, agreement infra. The rates of ment of the employees’acquisition repre- pay for the various classifications do dif- right, higher sentation which is their the cause for fer and the RNs rate of receive By openly pay employee must be traced to the Board. than the LVNs. The same given manual is to all the who adopting posture with noncompliance Employer. work for the interpret- the will of Congress bindingly ed Appeals, Court of the Board de- background require- The educational *7 lays extension of NLRA protection to a ments for the RNs and LVNs are differ- large employees.18 class of ent are set state law. The LVNs 864, supra. Hosp. Lynwood, 16. See notes 8 & 13 621 F.2d at St. Francis of way saying 601 F.2d at 419. Another of this is findings justify 17. There are no fact here to clear that the ALJ and Board must make separation RNs, 9(b) of LVNs and on either or reviewing in court the definite manner which 9(b)(l)/2(12) grounds. See notes 8 & 13 su- implementing are ; pra Appendix infra. Hosp., mandate. West Suburban 570 F.2d at The NLRB has ordered RN/LPN units with former, the consent and in health care cases there should be in the record statement voted on in a 18. Because of order issues why See, appropriate. reasons this is not election, controlling we do not find it Sonotone Shade, e.g., Maple supra note 14. rejected representation that RNs SEIU in 1976. Separate bargaining health units care See, Doctor, e.g., Family 226 N.L.R.B. at 121. justified disparity field must be in terms of a Although possible that the number of units precludes combination, that an internal not change even if RNs and LVNs are consistency justify within a class that could combined, this. we cannot now ascertain separation. Presbyterian/St. Hosp., Luke’s n.6; Mary Thompson Hosp., 653 F.2d at 457 cember 1976 with both Local 911 and complete must years schooling two at appearing Local 399 on ballot. A vocational school while the RNs must majority registered nurses voted an complete years schooling four at representation, therefore, against neither college. accredited The nursing nurses bargaining rep- union was certified as the pass both classifications then must a state resentative. administered and the examination exami Director, Regional HMO Inter Decision of nations for each different. are The state Group Medical Health national/California requirements for licensure Plan, Inc., (Jan. note Case 31-RC-4016 stringent more than LVNs. Based at 1978), reproduced in Record 79-80. whole, upon the above record and the as a I that professional find the RNs are em The Employer-Petitioner and the Union- Sacramento, ployees. Mercy Hospitals designated Petitioner hereinafter as the Inc., 217 NLRB St. Rose de Lima Employer and the respectively, Union Inc., Hospital, 223 NLRB Morris petition each filed a unit consisting for a Association, town-Hamblen Hospital represent RNs. Union seeks to NLRB No. 13. consisting registered nurses, I note represented that Local 300 has RNs, hereinafter called the at the Em- categories employees certain in all ployer’s 18 greater locations in the Los Employer’s facilities since 1969. Under Angeles, California Employer area. The the current collective-bargaining agree- agree and the Intervenor also Employer ment between the and Local scope of unit is composed the Em- 399, which is effective its terms from ployer’s greater facilities in the Los 1, 1980, November 1977 to November Angeles (the area facility nineteenth be- the following rep- classifications are now ing Diego, located the San California resented Local 300: Warehouseper- area). Despite petition, its the Employer drivers, sons, clerks, file medical records contends, agreement with Interve- clerks, x-ray receptionists, pharmacy nor, a unit consisting only of RNs is clerks, clerks, senior pharmacy typ- clerk inappropriate. Rather the ists, accounting pricers, ap- insurance and the Intervenor the only ap- contend that pointment clerks, receptionists, telephone propriate unit is one which includes both receptionists, receptionist/pricer/insur- the RNs and the Licensed Vocational clerks, I, ance LVNs LVNs II and LVNs Nurses, LVNs, herein called at the vari- III. ous the identity locations because of September, 1976, Teamsters Local 911 interests between petition filed with Board in Case job two classifications. Intervenor 31-RC-3645 seeking represent reg- however, partici- states that it wishes to nurses employed istered at 18 of pate any election in unit found HMOI facilities listed above. Local 399 appropriate. intervened. hearing concerning After a The record establishes that the Employer unit, the issue of the appropriate the un- employs both RNs LVNs at each of dersigned that a determined unit consist- (RN the 18 facilities. LVN) A nurse ing of RNs and excluding ap- LVNs was assigned to each upon I doctor based propriate. have attached a copy of the *8 of experience the in the specialty Decision and Direction of nurse Election which designated is area in which the doctor practices. as Exhibit A. The When Employ- occurs, a request vacancy er’s for a nurse is hired review was based denied in that experience parties upon case. The her in the stipulated specialty, that the rec- ord in that case rather is an part should be of than whether she RN or a the record in the instant case. For LVN. The nurses’ major the rea- functions are to Decision, Thus, sons set forth in the attached I assist doctors. nurses es- find that the RNs waiting constitute cort the appropri- patients to rooms where ate unit. An was patients’ election held on De- they take and vital history signs.

themselves, evidencing a greater interests pos- than those degree separateness of then assist doctors The nurses professionals in sessed most other by treatment. The LVNs examination or industry.” The Board there health care equip- RNs use the same medical and of held RNs job nearly separate are that a ment. While the duties regard, the conten- identical, give appropriate. In this the RNs can intravenous Sacramento, of Mercy Hospitals of doctors solutions under direction tion that Inc., a clinic only give inapplicable LVNs can solutions supra, but doctors. held in supervision clearly the direct Board inapposite under S., However, out-pa- Clinic, the facilities are P. 220 NLRB since Ltd. Memorial clinics, rather than use of hospitals, 217, appropri- tient constitute an No. that RNs infrequent. intravenous solutions to whether the regard ate unit without supervi- are under same basic a hospital nurses or clinic and facility an acute sion and can substitute for each other community of to their regard without during vacations. employees performing interest with other Furthermore, establishes that the bene- Section The record also similar functions. any professional RNs including 9(b) prohibits fits received sick Act leave, vacations, being and welfare included in a unit employee health and from profession- as those unless such non-professionals are the same received job cover- LVNs and other classifications elec- a self-determination granted als are existing collective-bargaining ed by an inclusion in such their regarding discussed, agreement infra. rates of unit. the various do dif-

pay for classifications have while RNs I note that further a higher fer the RNs receive rate of and by any labor or- represented never been employee the LVNs. The same pay than a current collective- there is ganization, given manual is to all who between the Em- agreement Employer. work for the Intervenor which is effec- ployer and the background requirements The education August 1976 to August tive from for RNs and LVNs are different employ- a unit of which covers by state law. The LVNs must are set drivers, persons, including ees warehouse at a vo- complete years schooling two LVNs, excluding profes- clericals and while the must com- cational school RNs RNs, doctors, X- guards, sionals, medical plete years four at an ac- schooling confi- Laboratory Technicians and Ray nursing college. The nurses in credited dential secretaries. both then a state pass classifications must repre- currently I LVNs are find that the exami- administered examination and the current the Intervenor sented nations for each are different. Obvious- agreement consti- collective-bargaining ly, requirements the state for licensure among the to an election tutes a bar nursing for each classification is different LVNs. stringent qualifications with more Director, Inter Regional Decision HMO upon Based the above RNs licensure. national, Inc., note Cases Nos. 31-RC- whole, as a I that the and the record find 1976), repro (Nov. 31-RM-523 professional Mercy employees. 80(f)-80(g). at duced Record Sacramento, Inc., NLRB Hospitals of No. FERGUSON, Judge, dissenting: Circuit consisting The law is clear that jurisdiction. We of limited sit on court purposes of RNs is empow- laws have The Constitution and Hospitals bargaining. Mercy collective Sacramento, Inc., case, right every wrong might ered us we supra. In that perceive That occa- considering Congressional imagine. con- function is after sionally proliferation bargain- left in the hands coordinate regarding cern *9 ing industry, government. units in the health care the branches of our Such is the states, “possess, majority correctly that case As the Board concluded here. public facility. for a “While the judicial unit health only appropriate review is when the may legal community NLRB The interest standard be de- ignored has standard. of Board, however, industries, not done in this it not entirely has so cisive in other Therefore, case. I dissent. controlling industry the health care Francis present Hospital, the St. context.” purpose It is that the undeniable suggests 601 F.2d at The court that 2(2) Act, of section amendment “by focusing disparity on the interests 152(2), is to limit the U.S.C. number § which employee groups pro- between would bargaining nonprofit hospitals units in so representation hibit or fair of em- inhibit that unnecessary disruption of health facili- interests, a balance can be made ployee Yet, ties can prevented. legisla- the congressional the directive and the between tive of the 1974amendment of sec- history employees’ right representation.” St. 2(2) Act, 152(2), 29 U.S.C. § Francis F.2d at 419. Commu- Hospital, 601 makes clear: guideline nity of interest is itself Congress did not within this framework Board; by it is not a firm and be used the intend preclude the Board acting in the must explicitly fast rule the Board public exercising interest from special- its applied. St. Francis accurately show experience expert ized knowledge Hospital disparity interest suggests determining bargaining might appropriate guideline be a more units. health public facility. the Board in a to use Cong.Rec. However, nothing in the decision under- Thus, was not meant to the amendment amendment, mines the overall thrust of have interfere with the deference courts which is to Board that must advise the Board’s deter- paid to the unit traditionally prolifer- give due to limit consideration Moreover, mination. the amendment does public facility. ation of in a health units provide not criteria the Board must adopt spe- Even if were to the more one majority follow in all circumstances. test, a “disparity cific of interest” remand argues if the amendment itself that even inappropriate here. Board would be criteria, provide does not such NLRB St. met, That test since LVN’s plainly 404 (9th. Francis 601 F.2d Hospital, already unit. not are in another One need 1979), has the amendment as interpreted analysis make a complicated comparative creating “disparity of inter- specific rule— what kind the RN’s and the LVN’s of work must follow always ests”—-that the Board in, engaged pay are what kind determining appropriate bargain- when receive, case, “disparity etc. In this ing public facility. in a health How- simple reali- by interests” established ever, Hospital Francis holding St. represented ty already that the are LVN’s simply Board on a rely that the by Regional a union. Decision of See presumption an RN without in favor of Director, (“I supra find that LVNs are previous on a articulating occasion the bas- currently by the Intervenor represented es for the No such assumption. presump- and the bargaining agree- current collective tion was case. employed in this The Board among ment to an election gave due constitutes bar pre- consideration need to vent a alone proliferation LVNs.”). in a this fact this case units On nonprofit hospital. Region- Decision of can be from St. Francis Hos- distinguished International, Director, Inc., n.4, by al pital. HMO None the cases cited St. Fran- 31-RC-3645, (Nov. majority’s Cases Hospital opinion Nos. 31-RM-523 cis 10,1976), reproduced appendix majori- involve a situation where LVN’s fact ty opinion. already consideration is that is a union at the represented Such all required by the Board. time the for an election. RN’s filed of interest” standard dicta, Hospital “community discusses Francis St. always of an part in has served as one overall used Board guidelines to be balancing traditionally has test. The Board appropriate bargaining determining the *10 given great flexibility balancing all been competing interests. Even if it were unit, appropriate

the case that the most amendments,

light of the 1974 is LVN- proviso

RN unit with a of a elec- Sonotone

tion, necessary it is not Board to for the unit, appropriate

arrive at the most unit. were to

appropriate Even if one

adopt the of interest test advocat- disparity

ed, such a test should not used to subvert expert body role of the Board as an Rayner

the field of labor law. v.

NLRB, (9th 1982). 665 F.2d position

This court is not in a make the necessary

careful evaluation of the facts

determine particu- unit in a

lar case. There is no need to undermine a

long judicial established posture of defer-

ence to the simply Board because the ma-

jority would like us to do so. The enforce- granted.

ment order should be MUSIC, INC.,

BROADCAST

Plaintiff-Appellee,

The UNITED STATES SHOE CORPORA-

TION, corporation Ohio, and U. S. Inc.,

Specialty Retailing, corporation Jacobs, Ohio, doing Klausmeyer, R. 0. Frost & Cincin- business as Casual Cor- Ohio, ner, Defendants-Appellants. nati, defendants-appellants. Cal., Smoot, Hills, Beverly Peter ar- C. No. 81-5162. Liv- gued, plaintiff-appellee; Kaplan, Appeals, United States Court of Selvin, Goodwin, ingston, Berkowitz & Bev- Ninth Circuit. Hills, Cal., erly on brief. Argued and Feb. 1982. Submitted

Decided June TANG,

Before GOODWIN and Circuit SOLOMON,* District Judges, and Senior Judge.

* Solomon, designation. Hon. Gus J. Senior United States Dis- Judge Oregon, sitting by trict for the District of