[00:00:02] Speaker 00: Case number 15, that's 1050 at L. Rush University Medical Center Petitioner versus National Labor Relations Board. [00:00:08] Speaker 00: Mr. Sparks for the petitioner, Ms. [00:00:11] Speaker 00: Heaney for the respondent, and Mr. Compass for the intervener. [00:00:37] Speaker 06: Good morning. [00:00:39] Speaker 06: Good morning, Judge. [00:00:39] Speaker 06: Ken Sparks for Rush University Medical Center. [00:00:42] Speaker 06: May it please the Court. [00:00:45] Speaker 06: Judges, for more than 37 years, Congress and the National Labor Relations Board considered the potential for disruption in acute health care to be a paramount concern, warranting careful consideration and special rules during elections to avoid disruptions from both the election process, from strikes, from bargaining, and from wage withdrawing. [00:01:05] Speaker 06: In 2011, the NLRB abruptly reversed course in its decision issued in St. [00:01:11] Speaker 06: Vincent, and it's that decision that leaves us here today. [00:01:15] Speaker 06: That decision has not yet been reviewed in a court of appeals. [00:01:19] Speaker 04: So if St. [00:01:19] Speaker 04: John's had never happened and all we had was St. [00:01:22] Speaker 04: Vincent's, [00:01:24] Speaker 06: Where are you then? [00:01:26] Speaker 06: Judge, I think we're still in the same place we are now. [00:01:28] Speaker 06: Ultimately, the question is, did St. [00:01:30] Speaker 06: Vincent address the concerns that Russia has raised here and the concerns that historically run through the NLRB's jurisprudence from 1974? [00:01:37] Speaker 06: So you think, for you, then it's more than St. [00:01:41] Speaker 04: Vincent's doesn't explain its departure from St. [00:01:44] Speaker 04: John's, according to you. [00:01:45] Speaker 04: It's that St. [00:01:46] Speaker 04: Vincent's [00:01:46] Speaker 04: It is both. [00:01:48] Speaker 06: It is both that St. [00:01:49] Speaker 06: Vincent itself is wrong, that St. [00:01:51] Speaker 06: Vincent doesn't explain why it departs from the historical concerns about strikes, about wage whipsawing, about multiplying the bargaining process and the fact that it departed from its prior decision in St. [00:02:02] Speaker 06: John's. [00:02:03] Speaker 06: So the board, if it's going to depart from its own precedent, it must explain that. [00:02:07] Speaker 06: But equally and separately apart from that, if it's going to issue that initial decision to decide that these concerns are not of significance to the NLRB, it must explain what it did. [00:02:18] Speaker 06: And if you read both St. [00:02:20] Speaker 06: Vincent's, if you read the decisions in this case, they nowhere address those concerns that run through the rulemaking that occurred in 1989. [00:02:27] Speaker 06: They nowhere explain the concerns that run through the jurisprudence prior to 1989, and they nowhere explain the concerns that run through the later cases. [00:02:36] Speaker 02: They at least said that the health rule has to do with additional units and this procedure that we're talking about in this case then at St. [00:02:46] Speaker 02: Vincent didn't add any units. [00:02:48] Speaker 02: It added individuals to an existing unit. [00:02:51] Speaker 06: There are two parts to that question. [00:02:54] Speaker 06: Certainly you are correct that they tried to address the meaning of the rule itself. [00:02:58] Speaker 06: No question about that about St. [00:02:59] Speaker 06: Vincent. [00:03:00] Speaker 06: The question is, is that explanation adequate? [00:03:03] Speaker 06: Secondarily, does that still address the concerns that we have arising in the case about the underlying concerns about what flows from the multiplication of elections? [00:03:12] Speaker 06: And that's nowhere addressed in St. [00:03:14] Speaker 06: Vincent. [00:03:15] Speaker 06: starting with the rule itself. [00:03:17] Speaker 06: If you look at the rule, the rule talks about the fact that if additional units exist, then we have a situation where the rule applies. [00:03:25] Speaker 06: But if you look at this case, if you look at page 19 of the appendix, there is a new certification issue. [00:03:30] Speaker 06: We are not simply looking at the existing unit and leaving it as it is, as it was the case in Kaiser and in Crittenden, but we have a new bargain unit that now adds additional employees to it. [00:03:42] Speaker 06: But the language of the rule is additional unit. [00:03:45] Speaker 06: It's certainly not multiplying the number of units that is adding additional employee structure. [00:03:50] Speaker 06: Right. [00:03:50] Speaker 06: Right. [00:03:50] Speaker 06: That's a highly significant difference, isn't it? [00:03:55] Speaker 06: You certainly could argue that it is. [00:03:56] Speaker 04: That's certainly what the board decided. [00:03:57] Speaker 04: That's the weakest link in your argument, wouldn't you agree? [00:04:00] Speaker 04: Certainly, I understand the position. [00:04:01] Speaker 04: So tell me why that link shouldn't be [00:04:03] Speaker 06: The question is, when you look at the original decision in St. [00:04:08] Speaker 06: John's, which reached the opposite result, whether or not that link was broken and adequately explained in St. [00:04:14] Speaker 06: Vincent. [00:04:14] Speaker 06: We don't believe it is. [00:04:16] Speaker 06: But setting aside that issue, you still have the underlying policy issue. [00:04:23] Speaker 04: that the real issue before you now is the relationship between St. [00:04:27] Speaker 04: John's and St. [00:04:28] Speaker 04: Vincent's and whether there was an adequate explanation. [00:04:31] Speaker 04: Correct. [00:04:31] Speaker 04: But I think you've just recognized that the attack on St. [00:04:35] Speaker 04: Vincent's alone, as if there had been no St. [00:04:37] Speaker 04: John's, is the weaker of your two arguments. [00:04:41] Speaker 06: It's certainly the first of our two arguments. [00:04:45] Speaker 06: We would look at the other arguments certainly very strong. [00:04:48] Speaker 06: If you look at St. [00:04:49] Speaker 06: Vincent itself, it never addresses the underlying policy concerns. [00:04:53] Speaker 06: In the 1989 rulemaking, the board talked about that it is not simply proliferation of units, which is what the board wants to say that this is about, that is an issue. [00:05:03] Speaker 06: But if you look at 284 NLRB 1575, the board said it is the, quote, problem perceived to arise from proliferation. [00:05:11] Speaker 06: that are at issue in this case. [00:05:13] Speaker 06: And the board said that in 1989 because it was concerned about underlying work stoppages, wage whipsawing, and other evils that flow from additional elections and that flow from additional markets. [00:05:24] Speaker 04: It's not just adding units. [00:05:27] Speaker 04: It's not just adding units. [00:05:30] Speaker 04: Correct. [00:05:31] Speaker 04: The problem here is elections that would get in the way of patient care, as I understand it. [00:05:35] Speaker 04: Is that right? [00:05:36] Speaker 06: That's correct, because it's not – well, it's both the elections and what occurs afterwards. [00:05:40] Speaker 06: Yeah, right. [00:05:40] Speaker 06: The election process itself is a bruised process. [00:05:42] Speaker 04: But you've got the problem with the language of the rule talking about additional units, I think. [00:05:47] Speaker 06: If you look at the evils that flow from this, at the problems that the board has been concerned about, both before and after the rules were issued in 1989, they were concerned about things other than just multiplication of the units. [00:06:00] Speaker 06: They talked about the rough housing of the election process itself, that this consumes time from supervisors, time from employees, time from existing bargaining unit members who are themselves campaigning with the employees who may be joining the unit. [00:06:13] Speaker 05: But even after that process is completed, these new... But just so I'm clear, the existing bargaining unit employees do not vote on whether to accept these new members into their bargaining unit, right? [00:06:29] Speaker 06: It's certainly the case that they do not vote, but one assumes that voting occurs in isolation without campaigning, if one looks only at who votes. [00:06:37] Speaker 06: If you look at the process, you have business agents campaigning, you have other employees in the existing unit campaigning, you have employees who are subject to the vote campaign, you have the employer campaigning, you have employees not involved in the unit or the vote who may want to campaign and have a say about the issues. [00:06:55] Speaker 06: So you can have upset regardless of who is in the voting unit itself. [00:07:01] Speaker 06: Even then, you go through the election, the union prevails in the election. [00:07:05] Speaker 06: These employees are not automatically added to the existing collective bargaining agreement. [00:07:11] Speaker 06: They have the right and the employer and the union have the right to separately bargain over their terms and conditions of employment. [00:07:18] Speaker 06: If you have a series of micro units that are created through the board's new rule, [00:07:22] Speaker 06: What you have is each separate small group of employees separately going through a bargaining process before the contract reopens. [00:07:30] Speaker 06: You have to negotiate all of their terms. [00:07:33] Speaker 06: Each of those negotiations is open to a strike. [00:07:37] Speaker 04: Could you address the relationship between St. [00:07:39] Speaker 04: Vincent's and St. [00:07:40] Speaker 04: John's? [00:07:41] Speaker 06: Sure. [00:07:42] Speaker 06: If you look at St. [00:07:43] Speaker 06: Vincent and St. [00:07:44] Speaker 06: John's, St. [00:07:44] Speaker 06: John's is the original decision, of course, in which the board decided that they did believe that their rules and their policies did require a different result than was reached in St. [00:07:54] Speaker 06: Vincent. [00:07:56] Speaker 06: If you look at St. [00:07:56] Speaker 06: Vincent, ordinarily the board, if it wants to set aside one of its precedents, is supposed to have an unbiased decision, the full board deciding it did not do so. [00:08:05] Speaker 06: The board tried instead to sidestep St. [00:08:08] Speaker 06: John's and decided that it was incorrectly, that it was dicta and not really the real decision before the board. [00:08:15] Speaker 06: That wasn't the decision previously in the Kaiser Foundation Hospital Case 335 and LRB 551. [00:08:21] Speaker 06: They reached a contrary result. [00:08:23] Speaker 06: If you look at some of the other decisions as well, they also decided that those were not the actual ruling in St. [00:08:29] Speaker 06: John's. [00:08:30] Speaker 06: having three times decided that St. [00:08:32] Speaker 06: John's meant something else, they could not simply decide, rush it aside and say that's not what St. [00:08:37] Speaker 06: John's decided. [00:08:38] Speaker 06: That's not a reasoned explanation. [00:08:40] Speaker 06: If they want to overrule it, they should overrule it. [00:08:42] Speaker 05: Well, they said that they looked at what was actually before the board in St. [00:08:46] Speaker 05: John's and that this particular issue wasn't before them, right? [00:08:50] Speaker 06: It's certainly what they said in St. [00:08:52] Speaker 06: Vincent's, yes. [00:08:53] Speaker 05: And you didn't say in your briefs that that's not true. [00:08:57] Speaker 05: The briefs actually did raise the issue or give us some other reason to kind of hang our hat on that, you know, this was an erroneous statement. [00:09:08] Speaker 06: If you look at St. [00:09:09] Speaker 06: John's itself, I think it speaks for itself as to what it said it decided, as to what it said it was adopting of the regional director's decision. [00:09:17] Speaker 06: If you look at the Kaiser Foundation case and some of the other cases, the board decided they did restate what St. [00:09:23] Speaker 06: John said. [00:09:23] Speaker 06: So again, from our perspective, the board several times said what they thought St. [00:09:28] Speaker 06: John meant, and then they decided to reverse the course in the St. [00:09:32] Speaker 06: Vincent case. [00:09:36] Speaker 06: The last argument is with respect to the nursing assistants themselves. [00:09:40] Speaker 06: We did ask as an alternative, if the first argument is not successful, that the court address whether or not nursing assistants should have been permitted to vote. [00:09:48] Speaker 06: The sole basis for the board's decision that they should not vote is that nursing assistants are students in a nursing program and that this alone is insufficient. [00:10:00] Speaker 06: If you look at the board's own decisions in University of West Los Angeles and Rhode Island Hospital, that is not a sufficient basis in and of itself to allow the exclusion of those from the voting population. [00:10:12] Speaker 06: The nursing assistants perform the exact same duties as the PCTs. [00:10:18] Speaker 06: They serve in the same schedules as the PCTs. [00:10:21] Speaker 06: They otherwise share a tremendous community of interest with them. [00:10:24] Speaker 06: In those circumstances, they should be allowed to have voted along with them. [00:10:29] Speaker 06: You know, in summary, I want to preserve a little bit of my time for rebuttal, but we would ask that the board's order be vacated and that the board's cross petition for enforcement be denied. [00:10:38] Speaker 06: Thank you very much. [00:10:45] Speaker 04: Good morning. [00:10:46] Speaker 01: Good morning, runners. [00:10:47] Speaker 01: My name is Elizabeth Heaney, and I represent the National Labor Relations Board, which is seeking enforcement of its order today. [00:10:54] Speaker 01: And I'll start right off with what Judge Griffith pointed out, which is that this involves an armor globe self-determination election, which by definition is not a petition seeking an additional [00:11:06] Speaker 01: of employees and has them join an existing unit. [00:11:13] Speaker 04: But let me read you the language from St. [00:11:14] Speaker 04: John's. [00:11:15] Speaker 04: As I read this to you, it's not long. [00:11:18] Speaker 04: It sure sounds to me like establishing a principle that ought to govern this case. [00:11:25] Speaker 04: Here's what the board said in St. [00:11:27] Speaker 04: John's. [00:11:27] Speaker 04: Because the petitioner already represents a nonconforming unit of skilled maintenance employees, [00:11:35] Speaker 04: If the petitioner seeks to represent any of the remaining unrepresented skilled maintenance employees, the petitioner must represent all the remaining skilled maintenance employees as part of its existing unit of plumbers and refrigeration employees. [00:11:52] Speaker 04: That seems to me to establish a principle [00:11:55] Speaker 04: that, as I understand it, was at the heart of what the health care rule was about. [00:11:59] Speaker 04: And that is to avoid the proliferation of elections and all the activities surrounding them because Congress had found over time that they disrupted patient care. [00:12:11] Speaker 04: We're talking about a very special and unique sector of the economy here that Congress has expressed a great deal of concern about, organizing activities, disrupting it. [00:12:23] Speaker 04: Now, that principle in St. [00:12:25] Speaker 04: John sounds pretty clear to me, and I don't see anything in St. [00:12:29] Speaker 04: Vincent's that seeks to distinguish that principle. [00:12:35] Speaker 04: To be sure, St. [00:12:37] Speaker 04: Vincent's says we have different facts. [00:12:39] Speaker 04: Every case has different facts. [00:12:41] Speaker 04: But what's the principle? [00:12:43] Speaker 04: Where did St. [00:12:44] Speaker 04: Vincent's distinguish that principle? [00:12:47] Speaker 04: I don't see it. [00:12:48] Speaker 01: Your Honor, I'll help if I can. [00:12:51] Speaker 01: St. [00:12:52] Speaker 01: Vincent's is not St. [00:12:53] Speaker 01: John's, and St. [00:12:55] Speaker 01: John's is not the case that is currently before this court. [00:12:58] Speaker 01: St. [00:12:59] Speaker 01: Vincent's never resulted in unit proliferation. [00:13:02] Speaker 01: Because it was an Armor Globe election, those employees were joined into the existing unit. [00:13:09] Speaker 01: And in St. [00:13:10] Speaker 01: John's, the board was also faced with trying to prevent unit proliferation, which, as you noted, was one of the driving forces behind the healthcare rule. [00:13:20] Speaker 01: If you look at St. [00:13:21] Speaker 01: John's, you had five pre-existing non-conforming units of skilled maintenance workers. [00:13:27] Speaker 04: I understand all that. [00:13:28] Speaker 04: What I'm looking for is where in St. [00:13:31] Speaker 04: Vincent's [00:13:32] Speaker 04: did the board make the argument you're making now? [00:13:35] Speaker 04: That seems to me to be a relevant question. [00:13:38] Speaker 04: The board is going to change course. [00:13:40] Speaker 04: It's free to do so. [00:13:41] Speaker 04: But it has to give us a reasoned explanation for doing so. [00:13:44] Speaker 04: And I just can't find in St. [00:13:46] Speaker 04: Vincent's the explanation other than we have different facts. [00:13:50] Speaker 04: I can't find in St. [00:13:50] Speaker 04: Vincent's an effort to explain why the principle that I read from St. [00:13:58] Speaker 04: John's shouldn't apply to St. [00:14:00] Speaker 04: Vincent's. [00:14:02] Speaker 01: Well, first, just to note that when in the board's the rulemaking to the health care rule in in the second comment to the health care rule, the board stated that it would decide issues concerning nonconforming units on a case by case adjudicative basis, which is what it has been doing. [00:14:18] Speaker 01: And if the board [00:14:21] Speaker 01: The board in St. [00:14:23] Speaker 01: Vincent's specifically stated that in St. [00:14:27] Speaker 01: John's, a petition for a separate residual unit was sought. [00:14:31] Speaker 01: That's how St. [00:14:31] Speaker 01: John's originated. [00:14:37] Speaker 01: who was already representing one of the already pre-existing units filed a petition for a separate additional unit. [00:14:44] Speaker 01: And it was, the employer sought review of that because he now was faced, the employer was now faced with six units of the same type of employee and out of the residual remaining employees was just six more employees was left. [00:15:00] Speaker 01: So what the employer sought review of in St. [00:15:02] Speaker 01: John's [00:15:03] Speaker 01: was the requirement that there now was going to be a sixth unit. [00:15:08] Speaker 01: And the board, in the proceedings below, the regional director had ordered the sixth unit to include all the residual remaining skilled maintenance employees. [00:15:19] Speaker 04: But the employer saw that... So is that the principle here, that when you're seeking an additional unit [00:15:25] Speaker 04: You have to bring all the residual employees, but when you're not seeking an additional unit, you don't? [00:15:30] Speaker 04: Is that the principle? [00:15:32] Speaker 01: Yes, that's the distinguishing factor. [00:15:33] Speaker 04: And how is that consistent with the nonproliferation impetus of the rule and of the statute? [00:15:40] Speaker 01: Well, I think, well, of course, again, in St. [00:15:43] Speaker 01: Vincent's, you did not have a unit proliferation concern because you just brought the portion of employees into the remaining unit. [00:15:51] Speaker 01: But while unit proliferation is a concern and was a driving concern behind the health care rule, it's not a mandate. [00:15:59] Speaker 01: And it doesn't have the force of law. [00:16:01] Speaker 04: And is it unit proliferation that's the only concern? [00:16:04] Speaker 01: Yes, it's unit. [00:16:05] Speaker 04: I thought it was more general than unit proliferation. [00:16:08] Speaker 04: I thought it was. [00:16:10] Speaker 04: election proliferation. [00:16:13] Speaker 01: If you spend your time on a rainy Saturday perhaps reading through the rulemaking here you'd see that unit proliferation was the primary concern. [00:16:22] Speaker 01: At one point there could have been possibly 20 different kinds of units in a hospital setting which of course would be incredibly disruptive to patient care. [00:16:30] Speaker 01: If you look at what the board did in St. [00:16:32] Speaker 01: Mary's. [00:16:33] Speaker 02: What is it about the additional units that makes it more disruptive than a proceeding that seeks to add additional employees to an existing unit? [00:16:39] Speaker 01: Well, you wind up having, according to the legislative history, possibly more opportunities for work stoppages and jurisdictional disputes. [00:16:50] Speaker 02: Because every time you have an additional unit, you have an additional problem. [00:16:57] Speaker 01: Yeah, a fracturing of units that actually continues on in time. [00:17:01] Speaker 01: Once you have multiple units, it's a continuing problem. [00:17:05] Speaker 01: Whereas an election happens once, and it's a moment in time, and then it ends. [00:17:09] Speaker 01: Whereas a proliferation of units is a problem that is ongoing that the hospital has to grapple with. [00:17:15] Speaker 01: And St. [00:17:15] Speaker 01: Vincent's and the court and the board here did not create that problem for the hospital. [00:17:20] Speaker 01: They took a distinct segment of employees and moved them within the existing unit. [00:17:24] Speaker 01: And as I was trying to draw the court's attention to the St. [00:17:28] Speaker 01: Mary's case, in that case, they allowed the creation of, they meaning the board, allowed the creation of a residual unit, and they recognized the unit proliferation problem, but also balanced it against collective bargaining history and the stability of the labor. [00:17:46] Speaker 02: In other words, it seems like the basic point is just that [00:17:48] Speaker 02: If you have multiple organizations that need to come together, you're less likely to avoid discord than if you have fewer organizations that need to come together. [00:17:56] Speaker 01: Yes, I think as any member of a large family would tell you that sometimes the smaller the better. [00:18:02] Speaker 01: Yes. [00:18:03] Speaker 01: And again, the board's decision here did not result in any additional unit. [00:18:08] Speaker 01: It took a segment of employees and added them to the existing unit. [00:18:15] Speaker 05: So you're not contesting. [00:18:18] Speaker 05: I mean, you're not disputing the notion that there is disruption if you have this kind of piecemeal addition to units, which is what rush is saying is happening here, right? [00:18:29] Speaker 01: There's no type of disruption that doesn't occur in an ordinary election process. [00:18:34] Speaker 01: The offer of proof that rush put forward dealt with. [00:18:39] Speaker 01: Well, we had employees who were away from their workstation and we had some families of patients [00:18:44] Speaker 01: complain, but that's something that would happen in an election. [00:18:47] Speaker 01: That's the Section 7 rights of employees to seek a representative in the workplace. [00:18:53] Speaker 01: It's part and parcel. [00:18:55] Speaker 01: And that's something that was considered in enacting the health care rule and imposing and applying the National Labor Relations Act to hospitals. [00:19:04] Speaker 05: So you're saying that that's not disruption at all in the sense that the board was defining that term or using that term when it promulgated the health care rule. [00:19:16] Speaker 01: It was not the concern that the board had in mind promulgating the health care rule. [00:19:20] Speaker 01: It was not the type of concern that the board was addressing with unit proliferation. [00:19:26] Speaker 01: The type of disruption the board was considering with regards to unit proliferation dealt more, again, with the wage whipsawing, the jurisdictional disputes, and the work stoppages. [00:19:38] Speaker 04: Thank you very much. [00:19:39] Speaker 01: Thank you for your time. [00:19:44] Speaker 04: Mr. Kappas. [00:19:45] Speaker 03: I'm here representing Teamsters Local 743. [00:19:50] Speaker 03: I think it's important to keep sight of two basic things about this case. [00:19:56] Speaker 03: First of all, what we're talking about is whether the NLRB has reasonably interpreted its own role, the healthcare role here. [00:20:02] Speaker 03: And what they said in St. [00:20:04] Speaker 03: Vincent is that when you have this kind of election, a self-determination election, a petition to add employees to a unit, the rule doesn't apply at all because that's viewed as a situation that's covered by the exception for pre-existing nonconforming units. [00:20:20] Speaker 03: So what about St. [00:20:21] Speaker 04: John's? [00:20:22] Speaker 04: What about the relation between St. [00:20:23] Speaker 03: Vincent's and St. [00:20:23] Speaker 03: John's? [00:20:24] Speaker 03: So the board said two things about St. [00:20:25] Speaker 03: John's. [00:20:26] Speaker 03: They said that in St. [00:20:27] Speaker 03: John's, there's a provision in the rule that says, even though it doesn't apply to pre-existing units, subsection C says, when you have a petition for additional units, then you have to try and do the best you can to comply with the rule. [00:20:42] Speaker 03: And the board in St. [00:20:43] Speaker 03: John's was applying that exception. [00:20:45] Speaker 03: And what St. [00:20:46] Speaker 03: Vincent's explained was two things. [00:20:49] Speaker 03: that St. [00:20:50] Speaker 03: John's began as a petition for additional units and the expansion of the voting group occurred when the case was still in that status at the regional level. [00:21:00] Speaker 03: The regional director expanded the voting universe while it was still a case that was for an additional unit. [00:21:07] Speaker 03: When it got to the board, there was no quarrel about the scope of the voting group. [00:21:12] Speaker 03: It was just whether the employer said there should be no election at all because it just violates the rule to have an election. [00:21:19] Speaker 03: And what the board said was, no, there should be an election, but it should be an election to add the group that the regional director had configured to the existing group. [00:21:30] Speaker 03: So that's the point at which the board turned it into an armor globe. [00:21:34] Speaker 03: self-determination election, but it didn't revisit the scope of the voting group. [00:21:39] Speaker 03: Now, if it had, there are very peculiar facts about St. [00:21:42] Speaker 03: John and the board and St. [00:21:43] Speaker 03: Vincent alluded to that and said this is a very extreme situation because you had the relatively small universe of skilled maintenance workers already broken into five different groups represented by five unions. [00:21:59] Speaker 03: And one of those unions said, we'd like a subset of the sliver that remains as a sixth group. [00:22:05] Speaker 03: And the board in St. [00:22:06] Speaker 03: Vincent said, well, that might have been too much for different reasons. [00:22:11] Speaker 03: And it further distinguishes the situation from this kind of case. [00:22:16] Speaker 03: Now, I submit that that is consistent with the board's interpretation of the rule. [00:22:23] Speaker 03: We cited all kinds of cases where they say additional unit means additional, separate, new unit. [00:22:30] Speaker 03: And here you're just adding to an existing unit. [00:22:34] Speaker 03: The other thing is it seems mandated by the words of the rule. [00:22:39] Speaker 03: And finally, as to the policy of the rule, the policy that animated the rule was the concern about proliferation of bargaining units. [00:22:48] Speaker 03: And where that comes from is Senator Kaft, when the law was amended to allow the expansion into this area, he identified two concerns. [00:22:58] Speaker 03: One was jurisdictional disputes and the other were work stoppages as to proliferation of units. [00:23:03] Speaker 03: In the American Hospital Association case, the Supreme Court made clear that that concern is not law. [00:23:11] Speaker 03: It's just a concern. [00:23:15] Speaker 03: It's a concern that animated the rule, but in St. [00:23:17] Speaker 03: Vincent, the ward explained why expanding this unit is not contrary to that policy. [00:23:23] Speaker 03: These people will come into the unit, they'll be covered by the collective bargaining agreement, they'll be part of the ordinary cycle, there won't be jurisdictional disputes proliferated by adding these people to the unit. [00:23:37] Speaker 05: But it's not necessarily that they just are automatically added into the collective bargaining agreement, right? [00:23:43] Speaker 03: The bargaining has to happen before. [00:23:45] Speaker 03: Yes, it's true. [00:23:46] Speaker 03: But if you look at the collective bargaining agreement in this case, which I would strongly recommend you do, it's in the joint appendix, you'll see the job classifications are not mentioned at all in the collective bargaining agreement. [00:23:57] Speaker 03: It's except for wage scales. [00:24:00] Speaker 03: It's generic agreement stuff, all kinds of things that apply equally across this unit. [00:24:07] Speaker 03: And the regional director, when he was finding that this group fit within the existing group, pointed out that the existing pay scale for the patient care technicians is very similar to the existing pay scale for the certified nursing assistants who are already in the unit. [00:24:26] Speaker 03: So in point of fact, for this particular group, it would be pretty much seamless to incorporate them. [00:24:33] Speaker 03: Now, as for the disruption of the election, I'd like to point out a couple of things about that. [00:24:38] Speaker 03: We're speculating, but I could just as easily speculate that the way the hospital wants to do the election would be more disruptive because they want to vastly expand [00:24:48] Speaker 03: the number of voters. [00:24:50] Speaker 03: How does that make sense in terms of avoiding disruption? [00:24:53] Speaker 03: And the statute provides, or the report's rules provide, I guess it's a statute actually, you can have elections every year. [00:25:00] Speaker 03: If the union keeps losing, they'll just come back every year. [00:25:03] Speaker 03: So you're not going to get away from elections. [00:25:05] Speaker 03: And that's not what was identified as an animating concern in the rule. [00:25:10] Speaker 02: I mean, is the bottom line that with respect to the two concerns you identified, which are jurisdictional disputes and work stoppages, that proliferation of units presents a different order of concern with this order on those two axes than does addition of employees to existing units? [00:25:26] Speaker 03: Yes, it's a totally different concern, because as Ms. [00:25:28] Speaker 03: Haney pointed out, [00:25:30] Speaker 03: It keeps existing over time. [00:25:32] Speaker 03: Every three years, you have people in different cycles, and then you have people claiming that's my work they're doing. [00:25:37] Speaker 03: If one group was out on strike, then the others are hobbled. [00:25:41] Speaker 03: There's not a hint anywhere that having the election was a problem. [00:25:50] Speaker 04: Thank you. [00:25:50] Speaker 04: Thank you very much. [00:25:51] Speaker 04: We'll give you back a couple minutes, Mr. Sparks. [00:25:57] Speaker 06: Thank you, Judge. [00:25:59] Speaker 06: I'd actually like to begin with a point that all of you have raised and that Council addressed. [00:26:03] Speaker 06: I've heard from both Council for the Board and Council from the Union that the kind of disruptions that Rush has identified are not the concerns of the Board's policy and are not the concerns that the prior case has addressed. [00:26:15] Speaker 06: I find no such finding in the board's decision here. [00:26:18] Speaker 06: I find no such finding in the board's decision in St. [00:26:21] Speaker 06: Vincent. [00:26:21] Speaker 06: If the board wants to make that finding, let it make that finding and decide it, issue a decision that this court can review. [00:26:28] Speaker 06: Council's words and council's arguments about what the board intended, about how the board considered this case to be decided, are not part of the board's decision. [00:26:38] Speaker 06: The board has to make and weigh the decisions about these disruptions. [00:26:43] Speaker 06: If you look at their prior decisions, they ordinarily did this. [00:26:46] Speaker 06: Prior to 1989, even the board reached the same result that it reached in St. [00:26:51] Speaker 06: John's. [00:26:52] Speaker 06: If you look at the Mary Thompson Hospital case involving the same union, Teamsters Local 743, a 1979 case, the board said there, the determinative factor here is the appropriateness of the unit possibly perfected through the addition of the voting unit. [00:27:06] Speaker 06: To be appropriate, the voting unit must at least include all unrepresented employees of the same type or category included in the existing unit so that their addition would complete or correct the existing unit and bring it into conformity with some unit that the board would find appropriate. [00:27:21] Speaker 06: The board reached the same result even prior to 1989 because it had the same concerns here. [00:27:27] Speaker 06: We've heard that the only concern is proliferation of units, and that that's the principal concern. [00:27:32] Speaker 06: As you point out, Judge Wilkins, there is concern about data strikes and disruptions. [00:27:36] Speaker 06: The board also mentions in its decisions and in its rulemaking wage whipsawing, which certainly is going to occur when you have repetitive elections. [00:27:44] Speaker 06: So we do have other kinds of concerns. [00:27:46] Speaker 06: And even in the 1989 rulemaking, the board indicated that the problems perceived to arise from proliferation were what the rules were intended to address. [00:27:57] Speaker 06: Finally, we have the issue of the existing CBA. [00:28:02] Speaker 06: Council for the Union has argued that somehow the existing CBA should be looked at to see how similar these employees are. [00:28:08] Speaker 06: Quite honestly, if we're going to make decisions in this case based on our suppositions about how similar or dissimilar employees are to existing unit employees, it's going to make these cases virtually impossible to decide. [00:28:21] Speaker 06: Ultimately, the court has to make a policy decision, and frankly, it needs to hold the board accountable to make a policy decision. [00:28:28] Speaker 06: They made no such policy decision here, and for that reason, the decision should be taken. [00:28:33] Speaker 04: Thank you very much. [00:28:33] Speaker 04: The case is submitted.