ON PETITION FOR REVIEW OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD AND CROSS-APPLICATION FOR ENFORCEMENT.
Gibbons and Weis, Circuit Judges and Edwin Steel, District Judge.*fn*
When the National Labor Relations Act was extended to health care institutions, one of the objectives was to avoid disruptions in patient care. Diagnosing fragmentation of bargaining units as a potential obstruction to that aim, congressional committees advised the National Labor Relations Board to prevent proliferation. In this appeal, we agree with a hospital's contention that the Board failed to heed that admonition. Accordingly, the Board's order will be set aside and enforcement denied.
The NLRB certified as an appropriate bargaining unit a group of four boiler operators employed by St. Vincent's Hospital in Montclair, New Jersey. After the hospital refused to recognize the union, the Board issued an order directing that collective bargaining take place.
The hospital has 112 beds and employs approximately 280 employees, 206 of whom work full-time. In addition to the four boiler operators, the hospital has three other employees in the maintenance department, 30 in housekeeping and laundry, and 28 in the dietary department. There are 30 nurse's aides, 20 licensed practical nurses, and ten technicians in addition to registered nurses and clerical personnel.
The petitioner union originally sought to represent a unit consisting of the boiler operators and three other maintenance employees. The boiler men are licensed by the State of New Jersey but perform the usual functions of stationary engineers such as checking gauges and water levels, cleaning the boiler rooms and performing minor repairs. The Board's regional director found that there was not a sufficient community of interest between the two employee groups and certified only the boiler operator unit.
The Board agreed with the regional director on the basis of its "traditional standards which have long recognized that units of licensed boiler room employees may constitute a separate appropriate unit," citing New England Confectionery Co., 108 N.L.R.B. 728 (1954). The majority of the Board did not discuss the congressional statement which accompanied the 1974 amendments to the National Labor Relations Act, although it was referred to in a concurring opinion. St. Vincent's asserts that the Board's recognition of the small, separate unit was contrary to the expressed intention of Congress and should not be enforced.
Section 9(b) of the National Labor Relations Act, 29 U.S.C. § 159(b) authorizes the Board to designate an appropriate unit for collective bargaining. The statute contains few restrictions on the Board's discretion and courts rarely disturb its determinations, Packard Motor Car Co. v. NLRB, 330 U.S. 485, 91 L. Ed. 1040, 67 S. Ct. 789 (1947), unless they exceed the Board's power. Nevertheless, it remains for the courts to insure that the exercise of the agency's discretion is not unreasonable, arbitrary, or in conflict with congressional intent. Memorial Hospital of Roxborough v. NLRB, 545 F.2d 351 (3d Cir. 1976). Moreover, the Board must disclose the reasons for a decision which is inconsistent with its prior rulings. Id. at 357.
In 1947 the Taft-Hartley Act amended § 2(2) of the National Labor Relations Act, 29 U.S.C. § 152(2), to exempt nonprofit hospitals from coverage under the Act. Growing unrest among employees in the health care field caused Congress to reconsider its position and in 1974 new amendments were enacted which extended the statute's coverage to a large number of workers in nonprofit hospitals and similar institutions.*fn1
The House and Senate committees considering legislation to remove the exemption became concerned with a hiatus in patient care which could be caused by jurisdictional disputes and strikes for recognition. The committee members recognized that disruption of patient treatment is a far more serious concern than a break in an industrial plant's production. In addition to the importance of uninterrupted service, they were aware of the impracticability of inventorying health care.
With the distinctive problems of the health care field in mind, various proposals were introduced to eliminate the exemption and also to establish substantial safeguards against undue disruption. A bill offered by Senator Taft, S. 2292, 93d Cong., 1st Sess. (1973), would have prevented the Board from designating more than four bargaining units in health care institutions. However, after some negotiation, it was decided to enact S. 3203, 93d Cong., 2d Sess. (1974), a compromise between Taft's previous bill and other proposals which did not contain specific restrictions. Agreeing that patients' welfare might be adversely affected by disputes over bargaining units, the committees addressed the problem by means of a statement incorporated in both House and Senate reports using the form of a directive to the Board:
"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 LRRM 1093 (1974), and Woodland Park Hospital, 205 NLRB No. 144, 5 NLRB No. 144, 84 LRRM 1075 (1973), as well as the trend toward broader units enunciated in Extendicare of West Virginia, 203 NLRB No. 170, 83 LRRM 1242 (1973).*fn1a
S.Conf.Rep. No. 988, 93d Cong., 2d Sess., reprinted in  U.S. Code Cong. & Ad. News 3946, 3950; S.Rept. No. 766, 93d Cong., 2d Sess. 5 (1974); H.Rept. No. 1051, 93d Cong.2d Sess. 7 (1974). In the decisions cited in the committee reports the Board included health ...