On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board No. 13-CA-19881
Before Pell and Sprecher, Circuit Judges, and East, Senior District Judge.*fn*
North Suburban Blood Center (NSBC or Center) has petitioned this court, pursuant to 29 U.S.C. § 160(f), to review and set aside an order of the National Labor Relations Board (Board or NLRB) which determined that the Center had violated 29 U.S.C. §§ 158(a)(1) and (5) by refusing to bargain with the union certified as the collective bargaining representative of the petitioner's full and regular part-time distribution driver and dispatch employees,*fn1 and directed the Center to bargain with the union. The Board has cross-applied for enforcement of its order.
The union sought certification as the exclusive bargaining representative of NSBC's driver and dispatch employees pursuant to 29 U.S.C. § 159(c). At the representation hearing before the Board's Regional Director, the Center objected to this unit definition as contrary to a Congressional directive to avoid undue proliferation of bargaining units in health care institutions. The Regional Director rejected NSBC's contention and determined that the Center was not a health care institution under § 152(14) of the Act. On that basis, he refused to apply considerations regarding the proliferation of bargaining units and directed an election. Ultimately, after the election, the Regional Director certified the union as the exclusive bargaining representative of the Center's drivers and dispatchers. After the Center refused to bargain, the union filed the unfair labor practice charges here at issue. The sole question decided in this appeal is whether the North Suburban Blood Center is a health care institution within the meaning of 29 U.S.C. § 152(14).*fn2
The Nature of the Employer's Business
The North Suburban Blood Center is a nonprofit entity formed by thirteen hospitals in Chicago's north and northwest suburbs to meet the total blood requirements of the participating hospitals. NSBC represents the consolidation of the internal blood bank operations of the hospitals which established the Center with their own funds to serve more efficiently and economically the blood needs of all of the hospitals jointly. Soon after NSBC was established, it was incorporated as a separate nonprofit organization, but it still retains organizational connections with the thirteen hospitals. The Center's Board of Directors is comprised of a hospital administrator or physician of each individual hospital, and a blood bank director or pathologist from each hospital serves on NSBC's Medical Advisory Board. The president and medical director of the Center is a physician licensed in Illinois and certified by the American Board of Pathology.
Donor recruiting and blood collection, processing, storage, inventory control, and distribution, previously performed separately by each hospital, are now consolidated into a unified operation carried out by the NSBC. The Center obtains blood from donors at its own facility located in Glenview, Illinois, at hospital facilities it uses,*fn3 or through exchange agreements with blood banks serving other hospitals. In addition to acquiring blood, the Center purchases blood-related supplies in bulk for the hospitals.
The Center maintains laboratories for testing, processing, and preparing blood at the Glenview facility. In addition, the Center's administrative vice-president, Dan Connor, testified that NSBC operates a reference and consultation laboratory to which the hospitals can send problem cases when "they want to cross-match (blood) ... and for whatever reason they have difficulty having the cross-matching compatible because the donor or the patient may have some irregular antibodies because of the previous transfusions.... (At the reference laboratory) we screen it against various known antiserums and then screen the donor for blood to come up with compatible blood for that patient that will not result in a transfusion reaction."
Other functions performed by the Center include diagnostic testing of patient specimens, consultation by the Center's Medical Director with physicians regarding particular patients, and the provision of blood and blood products for specific patients when requested by a physician from one of the hospitals. The Center can perform a plasma extraction procedure known as a "plasma freeze."*fn4 Center employees also draw blood from "autologous" donors those who come to have blood drawn for their own use, such as persons with rare blood types whose blood is extracted for their own future surgery. In addition, some people come to the Center for "therapeutic phlebotomies," which involve the removal of excess red blood cells, at the order of their attending physicians. In these cases, the blood removed is not used for later transfusions. Such donors are really receiving treatment as patients, although these treatments constitute a very small percentage of the Center's overall activity. Finally, NSBC's medical director treats any donors experiencing complications at the Center.
Status of Health Care Institutions Under the Act
Prior to the 1974 amendments to the National Labor Relations Act (Act), nonprofit hospitals were explicitly exempted by § 152(2) from the Act's definition of "employers" subject to the Act's coverage. Although blood banks were not statutorily exempt from the Act, the Board occasionally had declined to assert jurisdiction over blood banks when it determined that the blood bank was "intimately related" to the patient care at the exempt hospitals.*fn5 In 1974, Congress removed the nonprofit hospital exemption from § 152(2) and added a new subsection 152(14), which reads: "The term "health care institution' shall include any hospital, convalescent hospital, health maintenance organization, health clinic, nursing home, extended care facility, or other institution devoted to the care of sick, infirm, or aged persons." Although nonprofit hospitals now are subject to the Act's coverage as health care institutions, a determination that an entity is a health care institution requires unions of those organizations to abide by particular provisions added to the Act in 1974 designed to minimize disruption of patient care services.*fn6 Additionally, if the petitioner is found to be a health care institution, the Board must abide by a Congressional directive that
Due consideration should be given by the Board to preventing proliferation of bargaining units in the health care industry. In this connection, the Committee notes with approval the recent Board decisions in Four Seasons Nursing Center, 208 NLRB No. 50, 85 L.R.R.M. 1093 (1974), and Woodland Park Hospital, 205 NLRB no. 144, 84 L.R.R.M. 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 L.R.R.M. 1242 (1973).*fn6
S.Rep.No.93-766, 93d Cong., 2d Sess. 5 (1974), reprinted in (1974) U.S.Code Cong. & Ad.News 3946, 3950; H.Rep.No.93-1051, 93d Cong., 2d Sess. 7 (1974). See, e.g., Mary Thompson Hospital, Inc. v. NLRB, 621 F.2d 858 (7th Cir. 1980); NLRB v. Mercy Hospital Association, 606 F.2d 22 (2d Cir. 1979), cert. denied, 445 U.S. 971, 100 S. Ct. 1665, 64 L. Ed. 2d 248 (1980); NLRB v. West Suburban Hospital, 570 F.2d 213 (7th Cir. 1978).
A major purpose of the 1974 amendments was to minimize "the potential for increased disruption of health care delivery resulting from increased labor activity by employees of health care institutions now that their activities were protected" by the Act. NLRB v. IBEW, 548 F.2d 704, 711 (7th Cir.), cert. denied, 434 U.S. 837, 98 S. Ct. 127, 54 L. Ed. 2d 99 (1977).*fn7 In NLRB ...