1996 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-1996

Presbyterian Univ v. NLRB

Precedential or Non-Precedential:

Docket 95-3048,95-3082

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1996

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1996 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Presbyterian Univ v. NLRB" (1996). 1996 Decisions. Paper 98.

http://digitalcommons.law.villanova.edu/thirdcircuit_1996/98
 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 selfdetermination 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, LibbeyOwens-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 nonconforming 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 nonconforming 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 singlefacility 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 singlefacility 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 singlefacility 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.