                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-10-1996

Presbyterian Univ v. NLRB
Precedential or Non-Precedential:

Docket 95-3048,95-3082




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                     Nos. 95-3048 and 95-3082


              PRESBYTERIAN UNIVERSITY HOSPITAL,
        d/b/a UNIVERSITY OF PITTSBURGH MEDICAL CENTER,

                            Petitioner/Cross-Respondent

                                V.

                 NATIONAL LABOR RELATIONS BOARD

                              Respondent/Cross-Petitioner


      *INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL
              UNION 95-95A, AFL-CIO ("the Union"),

        Intervenor in Support of Respondent/Cross-Petitioner

            *(Granted as per Court's 4/14/95 Order)

ON PETITION FOR REVIEW OF ORDER OF THE NATIONAL LABOR RELATIONS
                             BOARD

                         (No. 6-CA-26550)


                     Argued October 30, 1995

      Before:   NYGAARD, ALITO AND SAROKIN, Circuit Judges


                 (Opinion filed July 10, 1996)



                         E. DONALD LADOV, ESQUIRE (Argued)
                         Cohen & Grigsby
                         625 Liberty Avenue
                         2900 CNG Tower
                         Pittsburgh, PA 15222-3115
                         Attorney for Petitioner/Cross-Respondent

                         AILEEN A. ARMSTRONG, ESQUIRE
                         Suite 8101
                         FRED L. CORNNELL, ESQUIRE (Argued)
                         National Labor Relations Board
                         1099 14th Street, N.W.
                        Washington, DC 20570-0001
                        Attorneys for Respondent/Cross-
                                       Petitioner


                        MARGARET G. NEIGUS, ESQUIRE
                        National Labor Relations Board
                        Contempt Litigation Branch
                        1099 14th Street, N.W.
                        Suite 10700
                        Washington, DC 20570
                        Attorney for Respondent/Cross-
                                       Petitioner

                        HELEN L. MORGAN, ESQUIRE (Argued)
                        International Union of Operating
                        Engineers
                        1125 17th Street, N.W.
                        Washington, DC 20036
                        Attorney for Intervenor



                       OPINION OF THE COURT


NYGAARD, Circuit Judge.
         This case involves a dispute over the appropriate
bargaining unit at a health care center resulting from the merger
of five separate hospitals. Presbyterian University Hospital
d/b/a University of Pittsburgh Medical Center filed this
petition for review of a final order of the National Labor
Relations Board. The NLRB cross-petitioned for enforcement of
its order. The union intervened in support of the NLRB's order.
We conclude that there is substantial evidence in the record to
support the NLRB's finding that four telecommunications workers
are skilled maintenance employees. We also conclude that the
NLRB did not abuse its discretion to determine the appropriate
unit when it found that the telecommunications workers at the
Presbyterian complex share a community of interest with the
skilled maintenance employees in the existing bargaining unit,
separate from the skilled maintenance employees at the Montefiore
complex. We will therefore deny UPMC's petition for review and
grant the NLRB's petition for enforcement of its order.
                                I.
         UPMC is a private, non-profit, acute care medical
center consisting of approximately forty buildings. UPMC
resulted from a series of mergers that began in 1989 between five
independent hospitals: Presbyterian and Montefiore University
Hospitals (both acute care hospitals), Eye and Ear Hospital, The
Falk Clinic, and Western Psychiatric Institute and Clinic.
Bridges and tunnels connect the main buildings of this center.
As a result of the merger, UPMC has one board of directors, one
president, and centralized scheduling and materials management
systems. Before the mergers the five hospitals operated under
separate licenses; UPMC now operates under a single operating
license issued by the Pennsylvania Department of Health.
         Since 1972, the union has represented skilled
maintenance employees at the Presbyterian complex. In August
1993, the union sought to add four employees to the existing
skilled maintenance unit through a self-determination election.
These four employees work in the Information Services Division at
UPMC's Presbyterian complex and have the job title of
"Telecommunications Specialists (Voice) I." Telecommunications
workers are responsible for installation, support and maintenance
of UPMC's telephone network and work primarily at the
Presbyterian complex where the existing unit employees are
located.
         UPMC opposed the union's representation, asserting that
the telecommunications workers were not properly included in the
skilled maintenance employees' bargaining unit, as defined by the
NLRB's final rule governing the appropriate units in an acute
care hospital, 29 C.F.R.   103.30(a)(5). UPMC further asserted
that, even if the telecommunications workers properly could be
included in that unit, a self-determination election must also
include UPMC's unrepresented, skilled maintenance employees at
the Montefiore complex.
         After a hearing, the Regional Director issued a
Direction of Election, determining that the telecommunications
workers were skilled maintenance employees and that they shared a
community of interest with the employees in the existing unit.
In a second hearing, the Director addressed the issue of whether
all of UPMC's remaining unrepresented skilled maintenance
employees, located at the Montefiore complex, must be included in
the voting group with the telecommunications workers in order to
have a proper residual election. The Director concluded that the
election did not have to include these Montefiore employees,
because they worked at a separate facility and UPMC had not
overcome the NLRB's single facility presumption.
         On review, the NLRB determined that the Director
properly included the telecommunications workers in the existing
skilled maintenance unit. The NLRB also determined that the
unrepresented skilled maintenance employees located at the
Montefiore complex need not be included with the
telecommunications workers from the Presbyterian complex in order
to have a proper election. According to the NLRB, although the
Director had incorrectly applied the single facility presumption,
the existing skilled maintenance unit was still appropriately
considered a multi-facility unit. See Presbyterian Univ. Hosp.,
313 N.L.R.B. 1341, 1341-42 (1994). By order of June 1, 1994,
based on the telecommunications employees' self-determination
election, the Director certified the Union as their collective
bargaining representative and included those employees in the
existing skilled maintenance unit.
         The union then requested bargaining with UPMC
concerning the telecommunications workers, but UPMC refused to
recognize the union in order to obtain review of the NLRB's
decision. As expected, the union filed an unfair labor practice
charge. In August 1994, the Regional Director issued a Complaint
and Notice of Hearing on the matter and the General Counsel filed
a motion for summary judgment. The NLRB granted the motion,
finding that UPMC violated   8(a)(1) & (5) of the National Labor
Relations Act, 29 U.S.C.   158(a)(1) & (5), by refusing to
bargain concerning the telecommunications employees.
                                II.
         The NLRB's interpretation of the Act normally is
entitled to deference and should be upheld if it is rational.
St. Margaret Memorial Hosp. v. NLRB, 991 F.2d 1146, 1151 (3d Cir.
1993). We uphold its factual findings if they are "supported by
substantial evidence on the record as a whole." Id. at 1152.
Because this case involves the NLRB's unit determination, we note
that a unit may still be upheld on review even if it is not the
"most appropriate" unit. See American Hosp. Ass'n v. NLRB, 499
U.S. 606, 610, 111 S. Ct. 1539, 1542 (1991). "Whether a unit is
appropriate involves a large measure of informed discretion
vested in the Board and is rarely to be disturbed." St.
Margaret, 991 F.2d at 1152 (internal quotations omitted).
Therefore, UPMC must fight an uphill battle "to show that the
Board abused its discretion in determining the appropriateness of
the bargaining unit in question." Id. (internal quotations
omitted). See also NLRB v. New Enterprise Stone and Lime Co.,
413 F.2d 117, 118 (3d Cir. 1969).
         The Act expressly delegates responsibility for unit
determination to the NLRB. 29 U.S.C.     159(b) provides, in
pertinent part:
         The Board shall decide in each case whether,
         in order to assure to employees the fullest
         freedom in exercising the rights guaranteed
         by this subchapter, the unit appropriate for
         the purposes of collective bargaining shall
         be the employer unit, craft unit, plan unit,
         or subdivision thereof . . . .
As a result, "[t]he Board may develop and apply rules regarding
appropriate units to circumscribe and to guide its discretion."
St. Margaret, 991 F.2d at 1152.
         Special concerns regarding the undue proliferation of
bargaining units in the health care industry prompted the NLRB to
adopt a final rule. As to acute care hospitals, this final rule
provides the appropriate job classifications:
         Except in extraordinary circumstances and in
         circumstances in which there are existing
         non-conforming units, the following shall be
         appropriate units, and the only appropriate
         units, except that if sought by labor
         organizations, various combinations of units
         may also be appropriate:
              (1) All registered nurses.
              (2) All physicians.
              (3) All professionals except for
              registered nurses and physicians.
              (4) All technical employees.
              (5) All skilled maintenance employees.
              (6) All business office clerical
              employees.
              (7) All guards.
              (8) All nonprofessional employees except
              for technical employees, skilled
              maintenance employees, business office
              clerical employees, and guards.
29 C.F.R.   103.30(a). The NLRB, in exercising its discretion
through the rulemaking process, heeded the congressional
"admonition" in the legislative history to the 1974 Amendments
(which brought acute care hospitals within the ambit of the Act)
to give due consideration to preventing undue proliferation of
bargaining units in the health care industry. American Hosp.
Ass'n v. NLRB, 499 U.S. 606, 616-17, 111 S.Ct. 1539, 1545 (1991)
(upholding the final rule as based on substantial evidence and
supported by reasoned analysis).
         The legislative history to the 1974 Amendments raised
concerns regarding unit scope issues. As reflected in the
rulemaking record, "[t]he Board justified its selection of the
individual bargaining units by detailing the factors that
supported generalizations as to the appropriateness of those
units." American Hosp. Ass'n, 499 U.S. at 619, 111. S. Ct. at
1546. For example, the NLRB considered past adjudicatory
decisions in which units of RNs, technical employees and skilled
maintenance employees consistently recurred. See Collective
Bargaining in the Health Care Industry, 53 Fed. Reg. 33900, 33903
(Sept. 1, 1988) (second notice of proposed rulemaking). The
first notice of proposed rulemaking indicated that
         [t]he Board has in the last 13 years received
         many hundreds of petitions for health care
         units. Generally, the units requested have
         been in approximately six, predictable
         groupings: registered nurses, other
         professional employees, technical employees,
         busines[s] office clerical employees, and
         skilled maintenance employees. . . . It is
         our observation that these groups of
         employees generally exhibit the same internal
         characteristics, and relationship to other
         groups of employees, in one health care
         facility as do like groups of employees at
         other facilities.
52 Fed. Reg. 25143-44. Therefore, in promulgating the final
rule, the NLRB exercised its discretion to avoid case by case
adjudication concerning unit scope issues. See 52 Fed. Reg.
25145.
                               III.
         UPMC first challenges the NLRB's decision to classify
the four telecommunications workers as skilled maintenance
employees. The NLRB adopted the Director's decision that they
were properly classified as skilled maintenance employees under
the final rule, 29 C.F.R.   103.30(a)(5). 313 N.L.R.B. at 1341.
The Director considered the following relevant factors: function
and skill level of the telecommunications workers; education,
licensing and training; supervision; wages, hours and working
conditions; interaction with other employees; labor market and
career path; whether they worked on the physical plant; and
whether their tasks involve equipment and systems.
         In exhaustive detail, the Director explained why he
considered the telecommunications workers skilled maintenance
employees. Identifying the specific tasks that these workers
have in common with unit employees, the Director found that: the
telecommunications workers perform work functions that relate to
maintenance of the physical plant; their job requires one to
three years of experience; their work involves installing wiring
and repairing telephones; they are required to have a high school
diploma and one to three years of experience; their wage rates
compare to that of other unit employees; they work daylight
hours; and they interact regularly with other unit employees,
especially electricians. Based on these findings, which are
supported by substantial evidence, the Director determined and
the NLRB agreed that the telecommunications workers were skilled
maintenance employees who shared a community of interest with the
existing unit employees.
         UPMC argues that the telecommunications workers do not
work on its physical plant, but instead work on its information
systems network. This distinction is artificial. The employees
install the wiring and jacks, which are "woven into the physical
plant just as firmly as the wiring and outlets that form the
electrical system are woven into it. . . . [A] telephone system
is an integral part of the physical plant." NLRB Brief at 30.
         UPMC characterizes the telecommunications workers as
unskilled, even though they use some of the same tools as other
unit employees, their installation work is similar to that
performed by the electricians, and their job requires that they
diagnose telecommunications equipment malfunctions and determine
whether that equipment should be repaired or replaced. The mere
fact that these employees are unlicensed and uncertified does not
automatically exclude them from the unit; other unit members,
such as painters and plasterers, are uncredentialed, yet they are
considered skilled. UPMC also contends that the
telecommunications workers should be excluded because they have
different immediate supervisors than the existing unit employees,
but the NLRB weighed this factor and determined it was
insufficient.
         The telecommunications workers are required to have
experience with a major telephone or interconnect company,
perform tests on telephone wiring and equipment and work
alongside unit employees, especially electricians, because
telephone wiring is often routed in close proximity to electrical
wiring. We find substantial evidence to support the NLRB's
determination that the telecommunications workers constitute
"skilled maintenance employees."
         Because the majority of the telecommunications workers'
assignments are within the Presbyterian complex, the NLRB found
it appropriate to include them in the existing skilled
maintenance unit of employees at the Presbyterian complex. We
hold that the NLRB did not abuse its discretion by determining
that the four telecommunications workers appropriately could be
added to the existing skilled maintenance unit through a self-
determination election.
                               IV.
         UPMC next argues that even if the NLRB correctly
allowed the telecommunications workers to vote on joining the
existing unit, it could not properly allow them to vote without
opening the election up to all of UPMC's skilled maintenance
employees; therefore, the NLRB, by not also including the
Montefiore skilled maintenance employees in the election, ignored
its own rule and abused its discretion.
         In determining whether the NLRB followed its own final
rule or abused its discretion in defining the appropriate unit
for the self-determination election, we are mindful of the NLRB's
broad powers to determine appropriate bargaining units, Libbey-
Owens-Ford Co. v. NLRB, 495 F.2d 1195, 1199 (3d Cir.), cert.
denied, 419 U.S. 998 (1974), and to formulate election procedures
and policies. St. Margaret, 991 F.2d at 1152. The NLRB's
underlying factual determinations on this issue are supported by
substantial evidence. Although UPMC makes arguments that might
be persuasive were we determining the matter de novo, it falls
far short of showing that the NLRB abused its discretion when it
determined that the skilled maintenance employees at the
Presbyterian complex should be treated as a unit distinct from
their counterparts at the Montefiore complex.
                                A.
         The NLRB rejected UPMC's argument that, under the final
rule, the existing unit of skilled maintenance employees at the
Presbyterian complex constituted an existing non-conforming unit
as defined by 29 C.F.R.   103.30(f)(5). 113 N.L.R.B. at 1342.
The NLRB, in its discretion, also rejected the Director's
decision to consider the unit a single facility unit to which the
single facility presumption applied. Instead, the NLRB
determined that the existing unit more accurately constituted a
conforming, multi-facility unit. Id. at 1341-42. It based this
decision on the fact that the health care center includes two
previously independent acute care hospitals and consists of
several, separate buildings, many of which are blocks away from
the others. The NLRB noted that, although some of the buildings
are connected by tunnels and bridges, not all of the buildings in
the Presbyterian complex are interconnected with the buildings in
the Montefiore complex. Thus, based on the peculiarities of
UPMC, it concluded that the existing unit employees did not truly
work at a single facility. The NLRB expressly found that the
existing unit conformed to the final rule, because, except for
the four telecommunications workers the union sought to add, the
unit encompassed all skilled maintenance employees within the
Presbyterian complex.
         In order to determine whether, after the hospital
mergers, the existing unit remained an appropriate multi-facility
unit or whether the skilled maintenance employees working at the
Montefiore complex must be included, the NLRB, citing Dezcon,
Inc., 295 N.L.R.B. 109 (1989), examined the traditional community
of interest factors, which include:
         geographic proximity, local autonomy,
         employee interchange and interaction,
         functional integration, terms and conditions
         of employment, and bargaining history.
Presbyterian Univ. Hosp., 313 N.L.R.B. at 1342.
         Applying these factors, the NLRB found the following:
1) the geographic proximity of the Presbyterian complex to the
Montefiore complex has not had a substantial impact on the
existing skilled maintenance unit's operations; 2) there is a
lack of contact between the employees at the Presbyterian complex
and Montefiore complex; 3) there is no interchange or interaction
between the groups of Presbyterian skilled maintenance employees
and Montefiore skilled maintenance employees, and there have
never been any joint projects involving them; 4) the employees
maintain their respective facilities; 5) material purchases are
performed by the respective facilities; 6) job openings at a
complex are posted within that complex first, then employer-wide;
7) the telecommunications workers are located at the Presbyterian
complex and are responsible for servicing the buildings within
that complex; 8) Montefiore has its own switch system and is
serviced by outside telecommunications contractors; and most
importantly, 9) the Presbyterian skilled maintenance unit has a
20-year-long history of successful and peaceful bargaining.
There is substantial evidence in the record to support the NLRB's
findings.
         Based on its findings, the NLRB determined that the
Presbyterian complex skilled maintenance unit remained a distinct
and appropriate unit, and that adding the telecommunications
workers would not change "the fact that Presbyterian's and
Montefiore's skilled maintenance operations are distinct." 313
N.L.R.B. at 1343. Thus, the NLRB ruled that the existing unit
remained appropriate and that the four telecommunications workers
constituted all the employees who were residual to that unit. On
petition for enforcement of its order, the NLRB emphasizes the
unit's successful and peaceful 20 year bargaining history and
argues that including the four telecommunications workers does
not pose a risk of disruption to the existing bargaining
relationship, while including the 49 special maintenance
employees at the Montefiore complex would cause a potentially
disruptive and significant change in the unit's composition.
                                B.
         UPMC's main argument is that the NLRB violated its
final rule by permitting a separate unit at the Presbyterian
complex. UPMC points to the words "all skilled maintenance
employees" in the rule, 29 C.F.R.   103.30(a)(5), and argues that
all skilled maintenance employees of UPMC must be treated as a
unit, because, as a result of the mergers, UPMC now operates
under a single Pennsylvania license. Therefore, UPMC maintains,
the NLRB cannot treat its Presbyterian and Montefiore facilities
as distinct and must include the Montefiore skilled maintenance
employees in a self-determination election.
         In support of its argument, UPMC asserts that
the final rule makes no distinction between acute care hospitals
that are comprised of more than one facility or occupy more than
one building and those consisting of only one facility. The NLRB
responds that the rule did not make that distinction because it
was not intended to affect the NLRB's discretion to determine
through adjudication how many facilities of a single employer (as
opposed to which job classifications) to include in an
appropriate unit.
         We agree with the NLRB. The rule simply does not
circumscribe or guide the NLRB's discretion to determine the
facilities to be included in a unit when health care providers
merge (indeed, it neither considered nor requested evidence on
this issue); it regulates the different job categories to be
organized in appropriate units in the health care industry. Nor
does the NLRB's finding that UPMC consists of multiple facilities
even though it operates under a single license for an acute care
hospital contradict its final rule. In that rule, the NLRB
defined an acute care hospital to distinguish such institutions
from other health care facilities; it did not delegate its
discretion to make multi-facility determinations to state
hospital licensing entities. UPMC interprets the rule in an
artificially restrictive manner which ignores both reality and
the purpose for which the NLRB promulgated it.
         The notices of proposed rulemaking and the final rule
do not even begin to delve into the issues of mergers and
multiple facilities of a single employer-hospital. SeeCollective
Bargaining Units in the Health Care Industry, 52 Fed.
Reg. 25142-25149 (July 2, 1987) (notice of proposed rulemaking);
53 Fed. Reg. 339000-33935 (Sept. 1, 1988) (second notice of
proposed rulemaking); 54 Fed. Reg. 16336-16348 (April 21, 1989)
(final rule). They clearly indicate that analysis regarding the
number of facilities to be included in a unit of, for example,
skilled maintenance employees, will still be appropriate. See 53
Fed. Reg. at 33903 ("[T]he proposed rule does not purport to
address the issue of the appropriateness of a single facility
when an employer owns a number of facilities, which the Board
will continue to address through adjudication. Manor Healthcare
Corp., 285 N.L.R.B. [224 (1987)]."); see also 54 Fed. Reg. at
16338 n.2 (The rule merely determines that job
classification/scope of an appropriate unit within an acute care
hospital need not be continuously relitigated, but the Board will
still have to resolve issues of unit composition, including
whether a single facility is appropriate.). The fact that the
final rule does not discuss merged hospitals made up of
originally separate hospitals, health care providers operating
hospitals made up of separate facilities, or state licensing
terminology referring to the merger of two or more hospitals as a
single hospital for licensing purposes, does not prevent the NLRB
from considering the actual makeup of various health care
entities in order to determine the appropriate number of an
employer's facilities to which it must apply the eight bargaining
unit categories. Instead, it simply indicates that the rule does
not address the issue. Thus, UPMC's argument that the final rule
decided unit composition issues is wholly unsupported and, in
fact, contradicted by the rulemaking record.
         Arguing that prior NLRB precedent requires us to deny
enforcement of its order, UPMC cites St. John's Hospital, 307
N.L.R.B. 767 (1992). The NLRB in that case required that, if a
union representing a non-conforming unit sought to represent
residual employees, all residual employees had to be added to an
existing unit by means of a self-determination election.
Therefore, according to UPMC, if the telecommunications workers
are allowed to vote to join the existing skilled maintenance
unit, then all UPMC's remaining unrepresented skilled maintenance
employees must be involved in the self-determination election.
This argument is without merit.
         St. John's Hospital does not control the NLRB's
decision here. First, unlike the situation in St. John's, the
NLRB here found that the existing unit was a conforming unit.
UPMC's approach in characterizing the existing unit and single
facility units generally as "non-conforming units," reads a
presumption into the rule that the only appropriate unit is an
employer-wide unit. We find nothing either in the rule or its
rulemaking history to indicate that the NLRB created this unique
presumption for acute-care hospitals.
         Moreover, St. John's Hospital involved job
classification, not multiple facility, issues. Because the
employer in St. John's Hospital had already recognized splintered
units of five different types of skilled maintenance employees,
the Regional Director found that a sixth unit made up of
remaining, unrepresented skilled maintenance employees would be
appropriate. The NLRB, however, found that the five non-
conforming units were more than enough and that a sixth unit of
skilled maintenance employees would lead to further undue
proliferation. It therefore ruled that, in order to represent
residual employees, the union must try to add them to one of the
existing five non-conforming units, rather than create another
non-conforming unit. St. John's Hospital is plainly
distinguishable. The NLRB here simply chose not to disturb the
existing Presbyterian skilled maintenance unit and permitted all
employees residual to that conforming unit to join it.
                                C.
         UPMC argues that the NLRB failed to consider adequately
the effect of the hospital mergers on the unit determination.
The NLRB responds that it considered the effect of the mergers,
but found, within its discretion, that the existing unit of
skilled maintenance employees at the Presbyterian complex
retained a sufficiently distinct community of interest to warrant
its preservation as an appropriate multi-facility unit in spite
of the mergers. The NLRB's decision accords well with the Act's
mandate that its unit determinations "assure to employees the
fullest freedom in exercising [their] rights." 29 U.S.C.
159(b). Cf. NLRB v. Western Southern Life Insur. Co., 391 F.2d
119, 123 (3d Cir.) (NLRB's single facility presumption accords
well with Act's policies), cert. denied, 393 U.S. 978 (1968).
This is not a case where the NLRB has determined that one group
of skilled maintenance employees within the same building or
facility as another group should constitute a separate unit.
Substantial evidence exists to support the particular distinction
found by the NLRB between the Presbyterian and Montefiore
complexes, in light of the realities at UPMC. By determining
as a result of that distinction that the skilled maintenance
employees at the Presbyterian complex constitute an appropriate
unit, the NLRB did not abuse its broad discretion.
         The NLRB's rulemaking process and the decision in
Staten Island Univ. Hosp. v. NLRB, 24 F.3d 450 (2d Cir. 1994),
further convince us that multi-facility analysis was not affected
by the final rule and remains relevant to the NLRB's discretion
to determine what group of any of the eight types of employees
listed in the Rule constitute an appropriate unit in the health
care industry. In Staten Island, the court addressed the issue
of whether the registered nurses at a North site facility could
be treated as a separate bargaining unit from the registered
nurses at a South site facility of the same hospital. The
separate facilities resulted from the merger of two separate
hospitals. The court stated that proper unit determination
findings depend on "the degree to which employees in separate
locations share a community of interests distinct from their
interests as employees of the whole institution." Id. at 454.
The court in Staten Island measured the degree of shared
interests by the same factors utilized by the NLRB in this case.
Analyzing those factors, it found that the NLRB did not abuse its
discretion by determining that the groups of registered nurses at
the two different sites constituted separate bargaining units.
                                D.
         UPMC treats its skilled maintenance employees at
Presbyterian and Montefiore as separate and distinct in serving
their respective facilities. UPMC has no plans to integrate or
merge the work of the two maintenance departments. The NLRB,
accordingly, has merely applied its broad discretion to the
particular circumstances of this case in finding the existing
unit appropriate and in conformity with the Final Rule. UPMC has
not met its heavy burden to show that the NLRB abused its
discretion in that determination.
                                V.
         In sum, we find that the NLRB did not abuse its
discretion when it determined that the telecommunications workers
could vote to include themselves in the existing skilled
maintenance unit at the Presbyterian facility. Likewise, the
NLRB's decision that the skilled maintenance employees at the
Montefiore facility did not have to be included in the existing
unit was not an abuse of discretion. We also find that the NLRB
properly concluded that UPMC violated   8(a)(1) & (5) of the
National Labor Relations Act by refusing to bargain with the
Union concerning the four telecommunications employees who
unanimously voted to be included in the existing skilled
maintenance unit. Therefore, we will deny UPMC's petition for
review and grant the NLRB's petition for enforcement.

Presbyterian University Hospital v. NLRB, Nos. 95-3048/3082

SAROKIN, Circuit Judge, dissenting.
         I agree with the majority that there is substantial
evidence in the record to support the NLRB's conclusion that the
four telecommunications workers are appropriately considered part
of the skilled maintenance workers bargaining unit. I conclude,
however, that the NLRB abused its discretion by applying the
community of interest analysis to determine whether the
Montefiore workers should be included in the skilled maintenance
workers bargaining unit.
         It is my view that under the Board's own Final Rule,
the Board should no longer apply the community of interest
analysis in determining appropriate bargaining units in the
context of acute care hospitals. Rather, in determining whether
an existing bargaining unit in an acute care hospital should be
expanded to include similar workers from a hospital with which it
has merged, I think the Board should apply the single facility
presumption -- a similar, but nonetheless distinct, standard --
and I would remand this matter to the Board for purposes of
applying the standard. Accordingly, I respectfully dissent.
                                I.
         In analyzing this case, I rely heavily upon the Board's
motivation for promulgating the Final Rule, as well as the
process it followed in doing so. Accordingly, I will first
present a brief history of the Final Rule.

                                A.
         In 1974, Congress passed the Health-Care Amendment to
the NLRA, making non-profit hospitals -- which had been exempt
from the NLRA -- subject to it. St. Margaret Memorial Hosp. v.
NLRB, 991 F.2d 1146, 1148 (3d Cir. 1993) (citing Pub.L. No. 93-
360, 88 Stat. 395 (1974) (codified at 29 U.S.C.    152(14),
158(d) and (g))).    As a result of this change, many disputes
arose regarding the appropriate bargaining units in the health
care industry, and the Board and the courts of appeals struggled
to resolve these disputes, often disagreeing on the appropriate
test to apply to make appropriate bargaining unit determinations.
See, e.g., Mercy Hospitals of Sacramento, 217 NLRB 765, 767
(1975) enf. denied on other grounds, 589 F.2d 968 (9th Cir.
1978), cert. denied, 440 U.S. 910 (1979) (relying on history of
separate representation and community of interest to conclude
registered nurses are entitled to separate bargaining unit); NLRB
v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979)
(favoring a "disparity of interests" standard over a "community
of interests" one); Electrical Workers IBEW Local 474 (St.
Francis Hospital) v. NLRB, 814 F.2d 697 (D.C. Cir. 1987)
(disapproving of the "disparity of interests" standard); seealso
Collective Bargaining Units in the Healthcare Industry, 52
Fed. Reg. 25,142 (July 2, 1987) (notice of proposed rulemaking)
(collecting cases and explaining changes in jurisprudence).
         By the late 1980s, the Board had become very concerned
with the lack of uniformity in the jurisprudence of the
adjudicative arm of the Board itself, as well as in the courts of
appeals, regarding the standard to be applied when determining
appropriate bargaining units in the health care industry:
"[T]here is no one, generally phrased test for determining
appropriate units in this industry that has met with success in
the various circuit courts of appeal, and, unfortunately, parties
have no clear guidance as to what units the Board, and courts
will ultimately find appropriate." 52 Fed. Reg. 25,142 (notice of
proposed rulemaking).
         In an effort to remedy this problem, the Board engaged
in notice and comment rulemaking in the late 1980s, with the goal
of creating a Rule that would limit the need for "lengthy, costly
litigation over the appropriate bargaining unit or units" in the
health care industry. Collective-Bargaining Units in the
Healthcare Industry, 53 Fed. Reg. 33901 (Sept. 1, 1988) (second
notice of proposed rulemaking). The Board proceeded with the
expectation that the process of notice and comment would allow it
the opportunity to produce empirical evidence that it could then
use to make appropriate unit determinations for acute care
hospitals generally, "while not creating such undesirable results
as excessive proliferation, interruption in the delivery of
health care services, jurisdictional disputes, wage whipsawing,
and the like." Id. In order to accomplish this task, the Board
relied on past cases and information it obtained in the process
of notice and comment and then applied an analysis very similar
to a community of interest analysis to identify a "finite number
of congenial groups displaying both a community of interests
within themselves and a disparity of interests from other
groups." 52 Fed. Reg. 25,146 (notice of proposed rulemaking).
         Among the factors to be considered [when
         determining the appropriate bargaining units
         for acute care hospitals] will be uniqueness
         of function; training, education and
         licensing; wages hours and working
         conditions; supervision; employee
         interaction; and factors relating to
         collective bargaining, such as bargaining
         history, matters of special concern, etc.
53 Fed. Reg. at 33905-06 (second notice of proposed
rulemaking).
         Following two notice and comment periods, the Board
ultimately promulgated the Final Rule, 29 C.F.R. 103.30,
defining eight appropriate bargaining units for acute care
hospitals, see Majority Opinion, typescript at 7-8, and declaring
that "[e]xcept in extraordinary circumstances and in
circumstances in which there are existing non-conforming units,
the [eight units] shall be appropriate units, and the onlyappropriate
units, for petitions filed pursuant to section
9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations Act .
. . ." Id. (emphasis added).
         Under the Final Rule, then, acute care hospitals are
allowed eight, and only eight, bargaining units. See American
Hospital Association v. NLRB, 499 U.S. 606, 608 (1991) (upholding
the validity of the Final Rule). Further, the Final Rule
necessarily permits only one bargaining unit of skilled
maintenance workers at an acute care hospital unless non-
conforming units already exist or there are extraordinary
circumstances. In the case of existing non-conforming units,
however, where the Union itself seeks to open up the unit to
residual skilled maintenance workers, it is required that
"allunrepresented employees residual to the existing unit or units be
included in an election to represent them." St. John's Hospital,
307 NLRB 767, 768 (1992) (emphasis added).
                                B.
         I think that the Board's motivation for promulgating
the Final Rule, as well as the process it followed in doing so,
demonstrates that the NLRB sought to end the case by case
application of the community of interest analysis when
determining the appropriate bargaining units in acute care
hospitals. The Board engaged in years of notice and comment,
collecting empirical evidence to develop appropriate categories
of workers in acute care hospitals in order to avoid the
difficulties experienced by the Board and the courts in
determining the appropriate bargaining units for hospitals. It
is my view that, with the promulgation of the Final Rule, the
Board, and necessarily any reviewing courts, were put out of the
business of applying the community of interest test to determine
appropriate bargaining units in acute care hospitals.
         I therefore conclude that the Board abused its
discretion when it applied the community of interest test in the
instant matter to determine whether the Montefiore skilled
maintenance workers should be included in the same bargaining
unit with the Presbyterian skilled maintenance workers. That the
community of interest test was applied here to determine whether
workers in similar job categories but different locations should
be part of the same bargaining unit, not whether workers in
different job categories should, does not alter my conclusion.
The Final Rule was intended to prevent the proliferation of
bargaining units in the health care industry. The Board's
decision below and the majority's decision today, however, allow
for the presence of multiple units of skilled maintenance workers
in one acute care hospital; this is directly contrary to the
Board's own Final Rule.
                               II.
         In rejecting the application of the community of
interest test, however, I do not necessarily conclude that the
Final Rule requires that the Montefiore skilled maintenance
workers automatically be considered a residual non-conforming
unit which should be included in the same bargaining unit as the
Presbyterian skilled maintenance workers. As the majority itself
correctly notes, the Final Rule "does not circumscribe or guide
the NLRB's discretion to determine the facilities to be included
in a unit when health care providers merge," Majority Opinion,
typescript at 17, but merely enunciates eight different
bargaining units by job category. Instead, I think that the
appropriate question for the Board is whether the Final Rule
applies to the UPMC as a whole, i.e. whether there may be eight
and only eight bargaining units in the entire UPMC (only one of
which may be a skilled maintenance workers unit) or whether the
Final Rule applies separately to each of the five historically
independent health care providers that comprise the UPMC such
that the UPMC itself could ultimately have forty units (eight
bargaining units times five health care facilities).
         If the Final Rule is to be applied to the UPMC as a
whole, then the skilled maintenance workers bargaining unit at
the Presbyterian complex is a non-conforming unit in that it does
not include all of the skilled maintenance workers at UPMC. Upon
opening itself up via representation elections, all residual
employees, namely the skilled maintenance workers from
Montefiore, must be included in the election under St. John's
Hospital, 307 NLRB 767 (1992). If, however, the Final Rule
applies to each of the five health care units independently, then
the only residual employees to be included in the Presbyterian
complex's unit of skilled maintenance workers are the
telecommunications specialists.
         I believe this question is answered by applying the
rebuttable presumption that single-facility units are appropriate
in the health care industry, explained in detail in Manor
Healthcare Corp., 285 NLRB 224 (1987). This presumption is
applied to determine whether employees working at different
facilities operated by the same employer should be part of the
same bargaining unit, or whether each facility should have its
own bargaining unit.
         According to Manor Healthcare, "[t]he Board has long
held . . . that a single facility unit geographically separated
from other facilities operated by the same employer is
presumptively appropriate for the purpose of collective
bargaining." Id. at 225. The rationale behind this presumption,
explained in the context of retail store chains, is as follows:
         The [e]mployees in a single retail outlet
         form a homogenous, identifiable, and distinct
         group, physically separated from the
         employees in other outlets of the chain; they
         generally perform related functions under
         immediate supervision apart from employees in
         the other outlets, and thus their problems
         and grievances are peculiarly their own and
         not necessarily shared with employees in the
         other outlets.
Id. (citing Haag Drug Co., 169 NLRB 877, 877-78 (1968). An
employer may rebut this presumption, however, upon a "showing of
circumstances that militate against its appropriateness." Id.
In order to determine whether the application of the presumption
is inappropriate, the Board considers such factors as the
geographic proximity of the different facilities to one another,
the degree of employee interchange and transfer, the functional
integration of the facilities, the administrative centralization
of the facilities, common supervision, and bargaining history.
West Jersey Health System, 293 NLRB 749, 751 (1989). Upon
reviewing these factors, the Board is in a position to decide
whether the degree of integration between or among the facilities
is so great that the single-facility presumption is overcome.
         The Board itself made clear in its Second Notice of
Proposed Rulemaking that it considers the application of the
rebuttable single-facility presumption appropriate in just the
context that exists here. In discussing hospital mergers and
consolidations, the Board noted that "the proposed rule does not
purport to address the issue of the appropriateness of a single
facility when an employer owns a number of facilities." 53 Fed.
Reg. at 33903 (second notice of proposed rulemaking). It then
explained that such determinations would continue to be addressed
through adjudication, and cited to Manor Healthcare Corp., in
which the single-facility presumption was applied. Id. (citing
Manor Healthcare, 285 NLRB 224). Furthermore, the Board and
other courts have consistently applied the rebuttable single-
facility presumption to cases similar to the instant one. Seee.g., Staten
Island University Hospital v. NLRB, 24 F.3d 450,
456-67 (2d Cir. 1994) (applying the single-facility presumption
in concluding that separate nursing bargaining units are
appropriate in merged hospital context); Children's Hospital of
San Francisco, 312 NLRB 920, 928 (1993) (same), enforced sub
nom.California Pacific Medical Center v. NLRB,    F.3d.    , 1996 WL
333692 (9th. Cir. 1996); see also West Jersey Health System, 293
NLRB at 752 (finding the employer's multifacility hospital
rebutted the single-facility presumption and required
multifacility units).
         The majority believes, however, that the single-
facility presumption should not be applied in this case. It
reasons that, because the Presbyterian complex is comprised of
eight different buildings, its skilled maintenance worker unit
should be thought of as a multi-facility unit, and thus the
single-facility presumption does not apply. Majority Opinion,
typescript at 12. I think the majority applies too literal a
meaning to the word "multi-facility," appearing to believe that
if employees work in different buildings of the same hospital at
the same site, their bargaining unit is a multi-facility unit.
As I understand it, however, the fact that one hospital is
comprised of several different buildings does not mean that its
workers' bargaining units are multi-facility bargaining units.
If a hospital -- or any enterprise -- is comprised of several
buildings on one site and has historically been an integrated
unit, the single-facility presumption may apply to its bargaining
units. See, e.g., Hartford Hospital and New England Health Care
Employee Union, 318 NLRB No. 3 (1995), 1995 WL 468326 at *4, *16
(applying the single-facility presumption to a psychiatric
hospital comprised of "several connected and unconnected
buildings" and "four residential group homes . . . , two of which
are located on the main campus and two of which are located in
the surrounding community").
         In my view, the skilled maintenance worker bargaining
unit at the Presbyterian complex is a single-facility unit.
While true that the Presbyterian complex is made up of eight
separate buildings, these buildings comprise the same health care
facility and always have; by all indications, the maintenance
workers in the eight buildings comprising the Presbyterian
complex always have been members of the same bargaining unit.
The question for us to answer, I believe, is whether the unit
should continue to be a single-facility unit in light of the
merger.
                               III.
         I recognize that some of the factors to be considered
in determining whether the single-facility presumption is
rebutted are similar or identical to those considered in applying
the community of interest analysis. Compare NLRB v. St. Francis
College, 562 F.2d 246, 249 (3d Cir. 1977) (noting that factors
applied in the community of interest test include, inter alia,
frequency of employee interchange, geographic proximity,
integration of production processes, and history of collective
bargaining) with West Jersey Health Systems, 293 NLRB at 751
(noting that factories considered in determining whether single-
facility presumption has been rebutted include, inter alia,
employee interchange, geographic proximity, functional
integration, administrative centralization, and bargaining
history). Indeed, I concede that I have found no cases in which
the difference between the application of the community of
interest analysis and the rebuttable single-facility presumption
is discussed. I nonetheless think that the way in which the
standards are applied are different and may materially affect the
outcome in this case.
         Most importantly, in applying the single-facility
presumption the Board looks at the facilities at issue as a wholerather
than focusing on the bargaining unit at issue. For
example, in Manor Healthcare, the Board applied the rebuttable
single-facility presumption to determine whether a union could
represent the service, maintenance and technical employees at
only one of the employer's three area nursing homes, or whether
multi-facility bargaining units were appropriate. Manor
Healthcare 285 NLRB at 227-28. In conducting its analysis, the
Board did not consider only the integration of the service,
maintenance and technical employees. Rather, it looked at the
functional integration of the nursing homes as a whole, including
"joint activities or interaction for patient care," "joint
outings for area patients," transfers of patients and employees,
as well as administrative centralization and geographic
proximity. Id. Similarly, when the Board applied the rebuttable
single-facility presumption in West Jersey Health System, it
looked at the degree of employee integration for all hospital
employees, including nurses, skilled maintenance workers, supply
room employees and clerks in the medical records department.
West Jersey Health System, 293 NLRB at 750.
         By examining the facilities as a whole, the Board can
arrive at a conclusion that applies to all of the bargaining
units for all of the different job categories. Thus, if the
Board concludes that the single-facility presumption applies to
the Presbyterian complex, any other bargaining units it may have,
such as nurse units or guard units, would also be single-facility
units. If the Board concludes the presumption was rebutted, then
there would only be one skilled maintenance workers unit, one
nurses unit, and one guard unit throughout the entire UPMC.
         Under the majority's reasoning, by contrast, the
Presbyterian skilled maintenance workers unit could be found to
lack a community of interest with the Montefiore workers, but the
nurses unit could be found to share one. That would mean the
UPMC management could be required to negotiate with two skilled
maintenance worker units, but only one nurses unit. Such an
outcome leads to unit proliferation that the Final Rule sought to
control, and it
provides no sorely needed predictable guideline for recently
merged hospitals regarding appropriate bargaining units.
                               IV.
         Accordingly, I would deny enforcement of the Board's
Order to Bargain, vacate the portion of the Board's decision
concluding that the Montefiore skilled maintenance workers need
not be included in the representation election, and remand for
application of the single-facility presumption. I would direct
on remand that the Board allow for more fact-finding on the issue
of employee interchange among all employees at all the
historically independent hospitals that comprise the UPMC as
there is insufficient evidence on the record regarding this
point.
