United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2016 Decided August 16, 2016

No. 15-1050

RUSH UNIVERSITY MEDICAL CENTER,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 743,

INTERVENOR

Consolidated with 15-1097

On Petition for Review and Cross-Application 

for Enforcement of an Order of 

the National Labor Relations Board

Kenneth F. Sparks argued the cause for petitioner. With 

him on the briefs was Mark L. Stolzenburg. 

Jacqueline M. Holmes and Jeffrey G. Micklos were on the 

brief for amici curiae American Hospital Association and the 

Federation of American Hospitals in support of petitioner. 
2

Elizabeth A. Heaney, Supervisory Attorney, National 

Labor Relations Board, argued the cause for respondent. 

With her on the brief were Richard F. Griffin, Jr., General 

Counsel, John H. Ferguson, Associate General Counsel, 

Linda Dreeben, Deputy Associate General Counsel, and 

Elliott Becker, Attorney.

James B. Coppess argued the cause for intervenor. With him 

on the brief was Joel A. D’Alba. Gary S. Witlen entered an 

appearance.

Before: GRIFFITH, SRINIVASAN and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: In 1989, the National Labor

Relations Board promulgated a rule aimed to address

concerns about the undue proliferation of collective 

bargaining units in health care facilities. Excessive

fragmentation of bargaining units was viewed to increase the

potential for labor unrest, which could be particularly harmful 

to the public in the health care setting. The resulting rule, 

known as the Health Care Rule, established eight standardized 

bargaining units for acute-care hospitals. The list of 

standardized units includes, for instance, registered nurses, 

skilled maintenance employees, and guards. On a prospective 

basis, the Rule deems the eight enumerated units to be the 

only appropriate bargaining units in acute-care hospitals.

This case concerns the application of the Health Care 

Rule on a retrospective basis—in particular, to preexisting 

bargaining units that did not conform to the eight standardized 

units set forth in the Rule. The Rule calls for the Board to 

address preexisting nonconforming units through case-by-
3

case adjudication. But the Rule prescribes that, if there is a

petition to represent an additional unit in a hospital with 

preexisting nonconforming units, the Board may find the 

additional unit appropriate only if it comports, to the extent 

practicable, with one of the eight standardized units. 

The Board understands that aspect of the Rule to apply as 

follows: in any representation election that would create a 

new bargaining unit, the new unit must include all 

unrepresented employees who would be grouped together in

one of the Rule’s standardized units. So, for instance, if the 

new bargaining unit would include any unrepresented

registered nurses, the new unit must include all unrepresented

registered nurses, not just some of them. That approach tends 

to minimize the number of employees who would be left 

unrepresented, thereby limiting the potential for further 

proliferation of bargaining units in the future.

The question in this case is whether the same 

understanding of the Rule governs in the case of an election to 

add unrepresented employees to a preexisting bargaining unit, 

as opposed to an election to create a new bargaining unit. In 

other words, when a union seeks to add unrepresented 

employees to a preexisting nonconforming unit, must the unit

embrace all (and not just some) of the unrepresented

employees who would fit within the same standardized unit in 

the Rule? The Board’s answer is no. The Board reasons that 

the addition of employees to an already existing unit—unlike 

the creation of a new unit—necessarily keeps the number of 

bargaining units constant. It therefore does not implicate the 

core concern of the Rule, i.e., proliferation of additional 

bargaining units.

The petitioner in this case, an acute-care facility, argues 

that the Board’s distinction between preexisting units and new 
4

units under the Rule is arbitrary and incompatible with the 

Board’s own precedent. We disagree. We therefore uphold 

the Board’s understanding that the Rule is inapplicable in the 

context of elections to add employees to a preexisting unit.

I.

A.

Although established in 1935, the National Labor 

Relations Board’s first major foray into formal rulemaking 

did not come until its promulgation of the Health Care Rule

more than five decades later, in 1989. Am. Hosp. Ass’n v. 

NLRB, 499 U.S. 606, 608 (1991); San Miguel Hosp. Corp. v. 

NLRB, 697 F.3d 1181, 1184 (D.C. Cir. 2012). As relevant 

here, the Rule addressed Congress’s concerns about undue

proliferation of bargaining units in health care facilities. See 

Am. Hosp. Ass’n, 499 U.S. at 615-17; S. Rep. No. 93-766

(1974), as reprinted in 1974 U.S.C.C.A.N. 3946, 3950; 

Collective-Bargaining Units in the Health Care Industry, 54 

Fed. Reg. 16,336-01, 16,345-46 (Apr. 21, 1989) (to be 

codified at 29 C.F.R. pt. 103). An excessive number of 

bargaining units increases the prospect of jurisdictional 

disputes and work stoppages, potentially impairing the 

provision of health care services to the public. See

Collective-Bargaining Units in the Health Care Industry, 53 

Fed. Reg. 33900-01, 33906 (Sept. 1, 1988); Am. Hosp. Ass’n, 

499 U.S. at 615. 

In response, the Health Care Rule established the 

following eight standardized bargaining units for acute-care 

hospitals: registered nurses, physicians, professionals other 

than registered nurses and physicians, technical employees, 

skilled maintenance employees, business office clerical 

employees, guards, and all other nonprofessional employees. 
5

29 C.F.R. § 103.30(a); San Miguel Hosp. Corp., 697 F.3d at 

1183. Under the Rule, the collective bargaining units in an 

acute-care hospital can consist of those eight—and only those 

eight—units. Am. Hosp. Ass’n, 499 U.S. at 608.

The Rule, however, included an exception from that 

mandate for nonconforming units already in existence at the 

time of the Rule’s promulgation. See 29 C.F.R. § 103.30(a). 

Preexisting nonconforming units were left for the Board to 

address on a case-by-case basis through adjudication. See id.

§ 103.30(b). In undertaking those adjudications, the 

governing regulations cabin the Board’s discretion in one 

respect of relevance here: when “there are existing nonconforming units . . . and a petition for additional units is 

filed . . . the Board shall find appropriate only units which 

comport, insofar as practicable, with the appropriate unit” 

from the eight standardized units. Id. § 103.30(c).

In adjudications construing that language, the Board has 

explained that, “[b]y its terms, Section 103.30(c) applies only 

to petitions for ‘additional units,’ that is, petitions to represent 

a new unit of previously unrepresented employees, which 

would be an addition to the existing units at a facility.” 

Kaiser Found. Hosps., 312 NLRB 933, 934 (1993); accord 

Crittenton Hosp., 328 NLRB 879, 880 (1999). And when a 

union brings a petition to represent such a new unit of 

previously unrepresented employees (who are referred to as 

“residual employees”), the Board has further determined that 

the additional unit must include all residual employees who 

would fit within the same standardized unit under the Rule. 

See St. Mary’s Duluth Clinic Health Sys., 332 NLRB 1419, 

1420-22 (2000). 

As an example, the Board applied that understanding of 

Section 103.30(c) in a situation in which there was a 
6

preexisting nonconforming bargaining unit that included some 

of the facility’s skilled maintenance employees (which, as 

noted, is one of the eight standardized categories of 

employees). The Board explained that, if a union sought to 

represent a new unit that would include unrepresented skilled 

maintenance workers, the union could not “represent yet 

another separate, residual unit that included only a portion of 

the remaining unrepresented skilled maintenance employees,” 

but would be “required to include all unrepresented 

employees residual to the existing unit of skilled maintenance 

employees.” St. Vincent Charity Med. Ctr., 357 NLRB 854, 

856 (2011) (emphases added).

The Board does not apply the same understanding, 

however, if a union seeks to add residual employees to an 

already existing unit rather than to create a new unit. The 

mechanism by which a union adds employees to an existing 

unit is known as an Armour-Globe, or self-determination, 

election. See generally Armour & Co., 40 NLRB 1333 

(1942); Globe Mach. & Stamping Co., 3 NLRB 294 (1937). 

In its decision in St. Vincent, the Board exempted ArmourGlobe elections from Section 103.30(c) in particular and from 

the Health Care Rule more generally.

The Board explained that an “Armour-Globe selfdetermination election . . . undeniably avoids any proliferation 

of units, much less undue proliferation, because it does not 

result in the creation of and election in a separate, additional 

unit.” St. Vincent, 357 NLRB at 855. Instead, “an ArmourGlobe election permits employees sharing a community of 

interest with an already represented unit of employees to vote 

whether they wish to be added to the existing unit.” Id. In 

that sense, a self-determination election “further[s] the 

petitioned-for employees’ interest in obtaining representation 
7

while avoiding any undue proliferation of units,” the principal 

concern of the Health Care Rule. Id. at 856.

B.

Petitioner Rush University Medical Center is an acutecare teaching hospital located in Chicago, Illinois. The 

International Brotherhood of Teamsters, Local 743 (the 

Union) has long represented a unit of employees in different 

nonprofessional job classes at Rush. The unit is a preexisting 

nonconforming unit under the Health Care Rule because it 

includes employees from two of the eight enumerated

categories—“other nonprofessional” employees and “skilled 

maintenance” employees—but it does not include all of 

Rush’s employees in either category. 

In 2014, the Union petitioned for a special election that 

would enable Rush’s unrepresented Patient Care Technicians 

(PCTs) to vote to be included in the preexisting 

nonconforming unit. PCTs qualify as “other nonprofessional” 

employees for purposes of the standardized units set forth in 

the Health Care Rule. The proposed voting group for the 

Armour-Globe election consisted of the roughly 245 

unrepresented PCTs. Rush opposed the proposed voting 

group on the ground that it was underinclusive. In Rush’s 

view, the voting group, to comply with the Health Care Rule, 

needed to encompass all unrepresented nonprofessional 

employees (who numbered between 700 and 800), not just 

PCTs.

The Regional Director rejected Rush’s arguments and 

found that the petitioned-for voting group was appropriate. 

The Board then denied Rush’s request for review. The Board 

considered the case to be controlled by its prior decision in St. 
8

Vincent, which, as explained, held that Armour-Globe 

elections need not conform to the Health Care Rule.

In the ensuing election, the residual PCTs voted to be 

included in the preexisting nonconforming unit. In order to 

test the certification, Rush refused to bargain. The Union 

filed a complaint with the Board, and the Board subsequently 

found that the refusal to bargain violated the National Labor 

Relations Act. Rush Univ. Med. Ctr., 362 NLRB No. 23, at 

*2-3 (Feb. 27, 2015). Rush now petitions this court for 

review, and the Board cross-applies for enforcement of its 

order.

II.

Rush contends that the Board’s bargaining unit 

determination in this case relied on an impermissible 

interpretation of the Health Care Rule. In Rush’s view, 

Section 103.30(c)’s requirement to conform to the Rule 

“insofar as practicable” should operate no differently in an 

Armour-Globe self-determination election than in an election

that would add a new bargaining unit. In the former situation 

no less than the latter, Rush submits, a union must add all—

not just some—residual employees who would be grouped 

within the same standardized unit under the Rule. According 

to Rush, the Board’s contrary conclusion in St. Vincent, to 

which it adhered in this case, is arbitrary and inconsistent with 

the Board’s prior decisions. 

We reject Rush’s challenge to the Board’s interpretation 

and application of its own regulation. This Court will 

overturn the Board’s determination of an appropriate 

collective bargaining unit only if “it is arbitrary or not 

supported by substantial evidence in the record.” Country 

Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1189 (D.C. Cir. 
9

2000). We “accord the Board an especially ‘wide degree of 

discretion’” on questions of representation. Randell 

Warehouse of Ariz., Inc. v. NLRB, 252 F.3d 445, 447-48 (D.C. 

Cir. 2001) (quoting NLRB v. A.J. Tower Co., 329 U.S. 324, 

330 (1946)). When, as here, we review an agency’s 

interpretation of its own regulations, we do not “decide which 

among several competing interpretations best serves the 

regulatory purpose.” Thomas Jefferson Univ. v. Shalala, 512 

U.S. 504, 512 (1994). Rather, we “give controlling weight to

the Board’s interpretation of its own rule unless it is plainly 

erroneous or inconsistent with the regulation itself.” Alldata 

Corp. v. NLRB, 245 F.3d 803, 807 (D.C. Cir. 2001).

Here, the Board’s interpretation of the Health Care Rule 

in St. Vincent is fully consistent “with the regulation itself.” 

Id. The regulation’s pertinent language says that, when “there 

are existing non-conforming units” and “a petition for 

additional units is filed,” the “Board shall find appropriate 

only units which comport, insofar as practicable, with the 

appropriate unit” from the eight standardized units defined by 

the Rule. 29 C.F.R. § 103.30(c). That regulation, as the 

Board has explained, applies by its terms to “a petition for 

additional units.” Id. (emphasis added). An Armour-Globe 

self-determination election, by its nature, does not involve the 

creation of any “additional units.” Rather, it involves the 

inclusion of additional unrepresented employees in an 

already-existing unit. Consequently, the Board’s exemption 

of Armour-Globe elections from Section 103.30(c) is entirely 

compatible with the regulation’s terms.

Nor is the Board’s understanding arbitrarily at odds with 

the regulation’s object. The Health Care Rule guards against 

undue proliferation of bargaining units in acute-care hospitals. 

An Armour-Globe self-determination election, by definition, 

involves no proliferation of bargaining units at any facility. 
10

See St. Vincent, 357 NLRB at 855. Rather, the number of 

bargaining units remains constant. To be sure, the Board 

could elect to require that the bargaining unit in an ArmourGlobe election, just like in a representation election to create a 

new unit, must encompass all residual employees who would

fit within the same unit among the Rule’s standardized units. 

But the Board did not act arbitrarily by drawing a distinction 

between the two types of elections. Instead, as the Board 

explained in St. Vincent, its interpretation “further[s] the 

petitioned-for employees’ interest in obtaining representation” 

through a self-determination election “while avoiding any 

undue proliferation of units.” Id. at 856.

Rush’s principal argument is not that the Board’s 

interpretation in St. Vincent conflicts with the regulation’s text 

or objectives. Rather, Rush devotes the bulk of its attention to 

contending that St. Vincent is arbitrary because it departs, 

without reasoned explanation, from the Board’s prior decision 

in St. John’s Hospital, 307 NLRB 767 (1992). Rush’s 

argument lacks merit.

In St. John’s, there were nonconforming units predating 

the Health Care Rule that included some of the hospital’s 

skilled maintenance employees. An incumbent union 

petitioned for a representation election that would have added 

a new bargaining unit encompassing some (but not all) of the 

unrepresented skilled maintenance workers. The Board 

declined to allow the representation election. The Board 

explained that, in the context of a hospital with a preexisting

nonconforming unit, a union desiring to add a new unit must 

include within the unit “all unrepresented employees residual 

to the existing unit.” Id. at 768. Moreover, because the case 

involved not a new union but instead an “incumbent wishing 

to represent employees residual to those in its existing unit,” 

the union was required to “do so by adding them to the 
11

existing unit” rather than creating a new unit, “usually by 

means of a self-determination election.” Id. The Board 

therefore remanded “to the Regional Director for direction of 

a self-determination election.” Id.

Rush seizes on the Board’s apparent understanding of the 

scope of the proposed bargaining unit for the selfdetermination election that was to be conducted on remand. 

The Board assumed that the union would represent “all the 

remaining skilled maintenance employees as part of its 

existing unit.” Id. (emphasis added). As Rush sees it, St. 

John’s thereby established an inexorable command that, 

whenever a union conducts an Armour-Globe selfdetermination election to add unrepresented employees to a 

preexisting nonconforming unit, the union must seek to add 

“all”—not just some—of the residual employees who fit 

within the standardized bargaining unit. St. John’s need not 

be read in that fashion, however.

To the contrary, the Board in St. Vincent gave a reasoned 

explanation of why it did not understand St. John’s to have 

established a blanket requirement that a union, when seeking 

a self-determination election to add employees to a 

preexisting unit, must include all residual employees 

belonging to the same standardized unit. St. John’s involved 

an effort to create “an additional, residual unit.” St. Vincent, 

357 NLRB at 856. In St. Vincent (as in this case), by contrast, 

the union sought to add employees “to its existing unit in a 

self-determination election.” Id. Moreover, although the 

Board in St. John’s remanded for the potential conduct of a 

self-determination election that would encompass “all 

remaining unrepresented skilled maintenance employees”—

not just some of those residual employees—the Board “did 

not specifically address whether” it was correct to “includ[e] 

the skilled maintenance employees not originally sought by 
12

the” union when it petitioned for an election to create a new 

unit. Id. 

In other words, the Board explained in St. Vincent, the 

decision in St. John’s had assumed that a self-determination 

election on remand would include all residual employees, but 

without deciding whether that assumed scope was correct, 

much less compelled. That assumption had arisen in St. 

John’s because the Regional Director would have allowed a 

representation election to add a new unit, but only if the new 

unit included all residual employees. See id. And when the 

employer sought review by the Board of the Regional 

Director’s allowance of an election to create a new unit, the 

employer did not dispute that, if the union were to seek to add 

employees to a preexisting unit rather than create a new unit, 

the self-determination election would—consistent with the 

Regional Director’s contemplated election of a new unit—

include all residual skilled maintenance workers. As the 

Board observed in St. Vincent, there was “no indication [in St. 

John’s] that any party requested that the Board reconsider the 

Regional Director’s inclusion of all remaining unrepresented 

skilled maintenance employees if an election”—either a selfdetermination election or an election to add a new unit—

“were to be held.” Id.

That assumption explains the Board’s statement in St. 

John’s that, “in the circumstances presented here, because the 

[union] already represents a nonconforming unit of skilled 

maintenance employees, if the [union] seeks to represent any 

of the remaining unrepresented skilled maintenance 

employees, the [union] must represent all the remaining 

skilled maintenance employees as part of its existing unit.” 

St. John’s, 307 NLRB at 768. The reference to “all the 

remaining skilled maintenance employees” did not establish a 

requirement that every self-determination election necessarily 
13

encompass all residual employees. Rather, the reference 

merely captured the assumed scope of the bargaining unit in 

that case, which none of the parties had challenged before the 

Board. The primary point of the quoted statement was instead

to establish that the union, as an incumbent union, would need 

to add “the remaining skilled maintenance employees as part 

of its existing unit” rather than create a new unit. Id.

In St. Vincent, the Board described its prior decision in St. 

John’s in just those terms. See St. Vincent, 357 NLRB at 856 

& n.12. As a result, the Board in St. Vincent remained free to 

conclude—as it did—that an Armour-Globe selfdetermination election falls outside the Health Care Rule, and 

thus need not include all residual employees who would fit in

the same standardized unit. 

Indeed, any contrary conclusion in St. Vincent would 

have been highly difficult to square with the Board’s 

intervening decisions after St. John’s. In two decisions, the 

Board specifically construed Section 130.30(c) to apply only 

in circumstances involving creation of an additional, new unit. 

See Crittenton, 328 NLRB at 880; Kaiser, 312 NLRB at 934. 

In both decisions, accordingly, the Board declined to apply 

Section 130.30(c) because the circumstances did not involve 

any new unit. See Crittenton, 328 NLRB at 880; Kaiser, 312 

NLRB at 934. St. Vincent likewise involved no new unit. 

Against the backdrop of the decisions in Crittenton and 

Kaiser, the Board would have been hard-pressed to conclude 

in St. Vincent that, in an Armour-Globe election in which 

there necessarily is no new bargaining unit, Section 130.30(c) 

nonetheless somehow applies. The Board reasonably decided 

otherwise. In short, because St. Vincent reasonably found 

Armour-Globe elections to fall outside the scope of Section 

103.30(c), and because this case involves an Armour-Globe 
14

election, we reject Rush’s argument that the bargaining unit in 

this case impermissibly conflicted with Section 103.30(c). 

This brings us, finally, to Rush’s contention that, even if 

the bargaining unit need not have encompassed all residual 

nonprofessional employees, it at least needed to include 

employees in the job classification of Nurse Assistant II. 

Those employees, Rush urges, have highly similar job duties

to the PCTs who cast votes in the self-determination election. 

The Nurse Assistant IIs thus should have been included in the 

voting group, Rush asserts. The Board rejected that 

argument, and we perceive no basis for overturning the 

Board’s determination.

When considering petitions for Armour-Globe elections, 

the Board looks to the proposed voting group to “determine 

the extent to which the employees to be included share a 

community of interest with unit employees, as well as 

whether the employees to be added constitute an identifiable, 

distinct segment so as to constitute an appropriate voting 

group.” Warner-Lambert Co., 298 NLRB 993, 995 (1990). 

In declining in this case to include Nurse Assistant IIs in the 

proposed voting group, the Board relied on Rhode Island 

Hospital, 313 NLRB 343 (1993). There, the Board focused 

on certain characteristics of the employees in the challenged 

voting group when assessing the relevant community of 

interest. In particular, members had no requirement that they

be enrolled in school to maintain employment; members

received employment benefits; and members’ pay rates were

affected by performance evaluations. Id. at 365. Because the 

excluded employees did not have those characteristics, the 

Board found they did not share a community of interest with 

the voting group. Id. at 364-65. In this case, precisely the 

same three factors distinguish Nurse Assistant IIs from PCTs. 

Consequently, the Board’s decision to uphold the Regional 
15

Director’s determination that Nurse Assistant IIs did not share 

a community of interest with PCTs was neither arbitrary nor 

unsupported by substantial evidence.

* * * * *

For the foregoing reasons, we deny Rush’s petition for 

review and grant the Board’s cross-application for 

enforcement.

So ordered.