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. e du/thir dc ir c uit_1996/98UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 95-3048 and 95-3082

PRESBYTERIAN UNIVERSITY HOSPITAL, d/b/a UNIVERSITY OF PITTSBURGH MEDICAL CENT ER,

Petitioner/Cross-Respon dent

V.

NATIONAL LABOR RELATIONS BOARD

Respondent/Cross-Petit ioner

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

Intervenor in Support of Respondent/Cross-P etitioner

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

ON PETITION FOR REVIEW OF ORDER OF THE NATIONAL LAB OR 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 (A rgued) Cohen & Grigsby 625 Liberty Avenue

2900 CNG Tower Pittsburgh, PA 15222-3115 Attorney for Petitioner/Cro ss-Respondent

AILEEN A. ARMSTRONG, ESQUIR E

Suite 8101 FRED L. CORNNELL, ESQUIRE ( Argued)

National Labor Relations Bo ard 1099 14th Street, N.W.Washington, DC 20570-0001

Attorneys for Respondent/Cr oss- Petitioner

MARGARET G. NEIGUS, ESQUIRE

National Labor Relations Bo ard Contempt Litigation Branch 1099 14th Street, N.W.

Suite 10700 Washington, DC 20570 Attorney for Respondent/Cro ss- Petitioner

HELEN L. MORGAN, ESQUIRE (A rgued) International Union of Oper ating 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 appr opriate bargaining unit at a health care center resulting f rom the merger of five separate hospitals. Presbyterian Universit y Hospital d/b/a University of Pittsburgh Medical Center filed this petition for review of a final order of the Nationa l Labor Relations Board. The NLRB cross-petitioned for enf orcement of its order. The union intervened in support of the NLRB's order.

We conclude that there is substantial evidence in t he record to support the NLRB's finding that four telecommunicat ions workers are skilled maintenance employees. We also conclud e that the

NLRB did not abuse its discretion to determine the appropriate

unit when it found that the telecommunications work ers at the Presbyterian complex share a community of interest with the skilled maintenance employees in the existing barga ining unit, separate from the skilled maintenance employees at the Montefiore complex. We will therefore deny UPMC's petition fo r review and grant the NLRB's petition for enforcement of its or der.

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 198 9 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 t his center. As a result of the merger, UPMC has one board of di rectors, one president, and centralized scheduling and materials managementsystems. Before the mergers the five hospitals ope rated under

separate licenses; UPMC now operates under a single operating license issued by the Pennsylvania Department of He alth. Since 1972, the union has represented skil led 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-determinati on election. These four employees work in the Information Servic es Division at UPMC's Presbyterian complex and have the job title of "Telecommunications Specialists (Voice) I." Teleco mmunications workers are responsible for installation, support a nd maintenance of UPMC's telephone network and work primarily at t he Presbyterian complex where the existing unit employ ees are located. UPMC opposed the union's representation, a sserting that the telecommunications workers were not properly in cluded in the skilled maintenance employees' bargaining unit, as defined by the NLRB's final rule governing the appropriate units i n an acute care hospital, 29 C.F.R.  103.30(a)(5). UPMC further asserted that, even if the telecommunications workers proper ly could be included in that unit, a self-determination electio n must also include UPMC's unrepresented, skilled maintenance e mployees at the Montefiore complex. After a hearing, the Regional Director iss ued 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 exi sting unit. In a second hearing, the Director addressed the iss ue of whether all of UPMC's remaining unrepresented skilled maint enance employees, located at the Montefiore complex, must be included in the voting group with the telecommunications worker s in order to have a proper residual election. The Director conc luded that the

election did not have to include these Montefiore e mployees, 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 Di rector 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 co mplex in order to have a proper election. According to the NLRB, although the Director had incorrectly applied the single facilit y presumption, the existing skilled maintenance unit was still app ropriately considered a multi-facility unit. See Presbyterian Univ. Hosp., 313 N.L.R.B. 1341, 1341-42 (1994). By order of Jun e 1, 1994, based on the telecommunications employees' self-det ermination election, the Director certified the Union as their collective bargaining representative and included those employ ees in the existing skilled maintenance unit. The union then requested bargaining with U PMC concerning the telecommunications workers, but UPMC refused to recognize the union in order to obtain review of th e NLRB's decision. As expected, the union filed an unfair l abor practicecharge. In August 1994, the Regional Director issu ed a Complaint

and Notice of Hearing on the matter and the General Counsel filed a motion for summary judgment. The NLRB granted th e 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 norma lly 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 determin ation, we note that a unit may still be upheld on review even if i t is not the "most appropriate" unit. See American Hosp. Ass'n v. NLRB, 499 U.S. 606, 610, 111 S. Ct. 1539, 1542 (1991). "Whet her a unit is appropriate involves a large measure of informed di scretion vested in the Board and is rarely to be disturbed." St. Margaret, 991 F.2d at 1152 (internal quotations omi tted). Therefore, UPMC must fight an uphill battle "to sho w that the Board abused its discretion in determining the appr opriateness of the bargaining unit in question." Id. (internal quo tations omitted). See also NLRB v. New Enterprise Stone an d 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 whethe r, in order to assure to employees the fulles t freedom in exercising the rights guarantee d by this subchapter, the unit appropriate f or the purposes of collective bargaining shal l be the employer unit, craft unit, plan uni t,

or subdivision thereof . . . . As a result, "[t]he Board may develop and apply rul es regarding appropriate units to circumscribe and to guide its discretion." St. Margaret, 991 F.2d at 1152. Special concerns regarding the undue proli feration of bargaining units in the health care industry prompt ed the NLRB to adopt a final rule. As to acute care hospitals, th is 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 appropriat e units, except that if sought by labor organizations, various combinations of uni ts 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 exc ept for technical employees, skilled maintenance employees, business offic e clerical employees, and guards.

29 C.F.R.  103.30(a). The NLRB, in exercising its discretion through the rulemaking process, heeded the congress ional "admonition" in the legislative history to the 1974 Amendments (which brought acute care hospitals within the ambi t of the Act) to give due consideration to preventing undue proli feration of bargaining units in the health care industry. Amer ican 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 e vidence and supported by reasoned analysis). The legislative history to the 1974 Amendm ents raised concerns regarding unit scope issues. As reflected in the rulemaking record, "[t]he Board justified its selec tion of the individual bargaining units by detailing the factor s 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 adjudi catory decisions in which units of RNs, technical employee s and skilled maintenance employees consistently recurred. See C ollective Bargaining in the Health Care Industry, 53 Fed. Reg . 33900, 33903 (Sept. 1, 1988) (second notice of proposed rulemaki ng). The first notice of proposed rulemaking indicated that [t]he Board has in the last 13 years recei ved many hundreds of petitions for health care units. Generally, the units requested hav e been in approximately six, predictable groupings: registered nurses, other professional employees, technical employee s, busines[s] office clerical employees, and skilled maintenance employees. . . . It is our observation that these groups of employees generally exhibit the same inter nal 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 ca se 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 main tenance employees. The NLRB adopted the Director's decisio n that they were properly classified as skilled maintenance emp loyees 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 fact ors: function and skill level of the telecommunications workers; education,licensing and training; supervision; wages, hours a nd working

conditions; interaction with other employees; labor market and career path; whether they worked on the physical pl ant; and whether their tasks involve equipment and systems. In exhaustive detail, the Director explain ed why he

considered the telecommunications workers skilled m aintenance employees. Identifying the specific tasks that the se workers have in common with unit employees, the Director fo und that: the telecommunications workers perform work functions t hat relate to maintenance of the physical plant; their job requir es one to three years of experience; their work involves inst alling 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 det ermined and the NLRB agreed that the telecommunications workers were skilled maintenance employees who shared a community of int erest with the existing unit employees. UPMC argues that the telecommunications wo rkers 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] tele phone system is an integral part of the physical plant." NLRB B rief at 30.

UPMC characterizes the telecommunications workers as unskilled, even though they use some of the same to ols as other unit employees, their installation work is similar to that performed by the electricians, and their job requir es that they diagnose telecommunications equipment malfunctions and determine whether that equipment should be repaired or replac ed. The mere fact that these employees are unlicensed and uncert ified does not automatically exclude them from the unit; other uni t members, such as painters and plasterers, are uncredentialed , yet they are

considered skilled. UPMC also contends that the

telecommunications workers should be excluded becau se they have different immediate supervisors than the existing u nit employees, but the NLRB weighed this factor and determined it was insufficient. The telecommunications workers are require d to have experience with a major telephone or interconnect c ompany, 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 th e NLRB's

determination that the telecommunications workers c onstitute "skilled maintenance employees." Because the majority of the telecommunicat ions workers' assignments are within the Presbyterian complex, th e NLRB found it appropriate to include them in the existing skil led maintenance unit of employees at the Presbyterian c omplex. We hold that the NLRB did not abuse its discretion by determiningthat the four telecommunications workers appropriat ely could be

added to the existing skilled maintenance unit thro ugh a selfdetermination election.

IV. UPMC next argues that even if the NLRB cor rectly allowed the telecommunications workers to vote on j oining the existing unit, it could not properly allow them to vote without opening the election up to all of UPMC's skilled ma intenance employees; therefore, the NLRB, by not also includi ng the Montefiore skilled maintenance employees in the ele ction, ignored

its own rule and abused its discretion. In determining whether the NLRB followed i ts own final rule or abused its discretion in defining the appro priate unit for the self-determination election, we are mindful of the NLRB's broad powers to determine appropriate bargaining un its, LibbeyOwens-Ford Co. v. NLRB, 495 F.2d 1195, 1199 (3d Cir .), cert. denied, 419 U.S. 998 (1974), and to formulate elect ion 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 argument s that might be persuasive were we determining the matter de nov o, it falls far short of showing that the NLRB abused its discr etion when it determined that the skilled maintenance employees a t the Presbyterian complex should be treated as a unit di stinct from their counterparts at the Montefiore complex.

A. The NLRB rejected UPMC's argument that, un der the final rule, the existing unit of skilled maintenance empl oyees at the Presbyterian complex constituted an existing non-co nforming 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 Dire ctor's decision to consider the unit a single facility uni t to which the single facility presumption applied. Instead, the NLRB determined that the existing unit more accurately c onstituted a conforming, multi-facility unit. Id. at 1341-42. It based this

decision on the fact that the health care center in cludes two previously independent acute care hospitals and con sists of several, separate buildings, many of which are bloc ks away from the others. The NLRB noted that, although some of the buildings are connected by tunnels and bridges, not all of th e buildings in the Presbyterian complex are interconnected with th e buildings in the Montefiore complex. Thus, based on the peculia rities of UPMC, it concluded that the existing unit employees did not truly work at a single facility. The NLRB expressly foun d that the existing unit conformed to the final rule, because, except for the four telecommunications workers the union sough t to add, the unit encompassed all skilled maintenance employees within the Presbyterian complex. In order to determine whether, after the h ospital mergers, the existing unit remained an appropriate multi-facility unit or whether the skilled maintenance employees w orking at the Montefiore complex must be included, the NLRB, citi ng Dezcon, Inc., 295 N.L.R.B. 109 (1989), examined the traditi onal community of interest factors, which include:geographic proximity, local autonomy,

employee interchange and interaction, functional integration, terms and conditio ns 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 Presby terian complex and Montefiore complex; 3) there is no interchange or interaction between the groups of Presbyterian skilled maintena nce employees and Montefiore skilled maintenance employees, and t here have never been any joint projects involving them; 4) th e employees maintain their respective facilities; 5) material p urchases are performed by the respective facilities; 6) job open ings at a complex are posted within that complex first, then employer-wide; 7) the telecommunications workers are located at th e Presbyterian complex and are responsible for servicing the build ings within that complex; 8) Montefiore has its own switch syst em and is serviced by outside telecommunications contractors; and most importantly, 9) the Presbyterian skilled maintenanc e unit has a 20-year-long history of successful and peaceful bar gaining. There is substantial evidence in the record to supp ort the NLRB's findings. Based on its findings, the NLRB determined that the Presbyterian complex skilled maintenance unit remai ned a distinct and appropriate unit, and that adding the telecommu nications workers would not change "the fact that Presbyteria n's and Montefiore's skilled maintenance operations are dis tinct." 313 N.L.R.B. at 1343. Thus, the NLRB ruled that the ex isting unit remained appropriate and that the four telecommunic ations workers constituted all the employees who were residual to that unit. On petition for enforcement of its order, the NLRB emp hasizes the unit's successful and peaceful 20 year bargaining h istory and argues that including the four telecommunications w orkers does not pose a risk of disruption to the existing barga ining relationship, while including the 49 special mainte nance employees at the Montefiore complex would cause a p otentially disruptive and significant change in the unit's composition.

B. UPMC's main argument is that the NLRB viol ated its final rule by permitting a separate unit at the Pre sbyterian complex. UPMC points to the words "all skilled mai ntenance employees" in the rule, 29 C.F.R.  103.30(a)(5), and argues that all skilled maintenance employees of UPMC must be t reated as a unit, because, as a result of the mergers, UPMC nowoperates under a single Pennsylvania license. Therefore, UP MC maintains, the NLRB cannot treat its Presbyterian and Montefio re facilities

as distinct and must include the Montefiore skilled maintenance employees in a self-determination election. In support of its argument, UPMC asserts t hat

the final rule makes no distinction between acute c are hospitals that are comprised of more than one facility or occ upy more thanone building and those consisting of only one facil ity. The NLRB

responds that the rule did not make that distinctio n because it

was not intended to affect the NLRB's discretion to determine through adjudication how many facilities of a singl e employer (as opposed to which job classifications) to include in an appropriate unit. We agree with the NLRB. The rule simply d oes not circumscribe or guide the NLRB's discretion to dete rmine the

facilities to be included in a unit when health car e providers merge (indeed, it neither considered nor requested evidence on this issue); it regulates the different job categor ies to be organized in appropriate units in the health care i ndustry. Nor does the NLRB's finding that UPMC consists of multi ple 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 deleg ate its discretion to make multi-facility determinations to state hospital licensing entities. UPMC interprets the r ule 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 merge rs and multiple facilities of a single employer-hospital. SeeCollective Bargaining Units in the Health Care Industry, 52 Fe d. Reg. 25142-25149 (July 2, 1987) (notice of proposed rulemaking); 53 Fed. Reg. 339000-33935 (Sept. 1, 1988) (second n otice of proposed rulemaking); 54 Fed. Reg. 16336-16348 (Apr il 21, 1989) (final rule). They clearly indicate that analysis regarding the number of facilities to be included in a unit of, f or example, skilled maintenance employees, will still be approp riate. See 53 Fed. Reg. at 33903 ("[T]he proposed rule does not p urport to address the issue of the appropriateness of a singl e facility when an employer owns a number of facilities, which the Board will continue to address through adjudication. Man or Healthcare Corp., 285 N.L.R.B. [224 (1987)]."); see also 54 Fe d. 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, i ncluding whether a single facility is appropriate.). The fa ct that the final rule does not discuss merged hospitals made u p of originally separate hospitals, health care provider s 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 pr event the NLRB from considering the actual makeup of various healt h care entities in order to determine the appropriate numb er of an employer's facilities to which it must apply the ei ght 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 unsupport ed and, in fact, contradicted by the rulemaking record. Arguing that prior NLRB precedent requires us to denyenforcement of its order, UPMC cites St. John's Hos pital, 307

N.L.R.B. 767 (1992). The NLRB in that case require d that, if a union representing a non-conforming unit sought to represent residual employees, all residual employees had to b e added to an existing unit by means of a self-determination elec tion. Therefore, according to UPMC, if the telecommunicat ions workers are allowed to vote to join the existing skilled ma intenance unit, then all UPMC's remaining unrepresented skill ed maintenance employees must be involved in the self-determinatio n election. This argument is without merit. St. John's Hospital does not control the N LRB's decision here. First, unlike the situation in St. John's, the NLRB here found that the existing unit was a confor ming 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 create d this unique presumption for acute-care hospitals. Moreover, St. John's Hospital involved job classification, not multiple facility, issues. Bec ause the employer in St. John's Hospital had already recogni zed splintered units of five different types of skilled maintenanc e employees, the Regional Director found that a sixth unit made up of remaining, unrepresented skilled maintenance employ ees would be appropriate. The NLRB, however, found that the fiv e nonconforming units were more than enough and that a s ixth unit of skilled maintenance employees would lead to further undue proliferation. It therefore ruled that, in order t o represent residual employees, the union must try to add them to one of the existing five non-conforming units, rather than cre ate another non-conforming unit. St. John's Hospital is plainl y 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 consid er adequately the effect of the hospital mergers on the unit dete rmination. 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 c omplex retained a sufficiently distinct community of inter est to warrant its preservation as an appropriate multi-facility u nit in spite of the mergers. The NLRB's decision accords well w ith the Act's mandate that its unit determinations "assure to emp loyees the fullest freedom in exercising [their] rights." 29 U .S.C.  159(b). Cf. NLRB v. Western Southern Life Insur. C o., 391 F.2d 119, 123 (3d Cir.) (NLRB's single facility presumpt ion accords well with Act's policies), cert. denied, 393 U.S. 9 78 (1968).

This is not a case where the NLRB has determined th at one group of skilled maintenance employees within the same bu ilding or facility as another group should constitute a separ ate unit. Substantial evidence exists to support the particul ar distinction found by the NLRB between the Presbyterian and Mont efiorecomplexes, in light of the realities at UPMC. By d etermining

as a result of that distinction that the skilled ma intenance employees at the Presbyterian complex constitute an appropriate unit, the NLRB did not abuse its broad discretion. The NLRB's rulemaking process and the deci sion in Staten Island Univ. Hosp. v. NLRB, 24 F.3d 450 (2d Cir. 1994), further convince us that multi-facility analysis wa s not affected by the final rule and remains relevant to the NLRB' s discretion to determine what group of any of the eight types o f employees listed in the Rule constitute an appropriate unit i n the health care industry. In Staten Island, the court address ed the issue of whether the registered nurses at a North site fa cility could be treated as a separate bargaining unit from the r egistered nurses at a South site facility of the same hospita l. The separate facilities resulted from the merger of two separate hospitals. The court stated that proper unit deter mination findings depend on "the degree to which employees i n separate locations share a community of interests distinct f rom their interests as employees of the whole institution." Id. at 454. The court in Staten Island measured the degree of s hared 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 regist ered nurses at the two different sites constituted separate bargai ning units.

D. UPMC treats its skilled maintenance employ ees at Presbyterian and Montefiore as separate and distinc t 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 discretio n to the particular circumstances of this case in finding th e existing unit appropriate and in conformity with the Final R ule. UPMC has not met its heavy burden to show that the NLRB abus ed its

discretion in that determination.

V. In sum, we find that the NLRB did not abus e its

discretion when it determined that the telecommunic ations workers could vote to include themselves in the existing sk illed maintenance unit at the Presbyterian facility. Lik ewise, the NLRB's decision that the skilled maintenance employ ees 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 employ ees who unanimously voted to be included in the existing sk illed maintenance unit. Therefore, we will deny UPMC's p etition for review and grant the NLRB's petition for enforcemen t.

Presbyterian University Hospital v. NLRB, Nos. 95-3 048/3082

SAROKIN, Circuit Judge, dissenting.I agree with the majority that there is su bstantial

evidence in the record to support the NLRB's conclu sion that the four telecommunications workers are appropriately c onsidered part of the skilled maintenance workers bargaining unit. I conclude, however, that the NLRB abused its discretion by app lying the community of interest analysis to determine whether the

Montefiore workers should be included in the skille d maintenance workers bargaining unit. It is my view that under the Board's own F inal Rule, the Board should no longer apply the community of i nterest analysis in determining appropriate bargaining unit s in the context of acute care hospitals. Rather, in determ ining whether an existing bargaining unit in an acute care hospit al should be expanded to include similar workers from a hospital with which it has merged, I think the Board should apply the sing le facility presumption -- a similar, but nonetheless distinct, standard -- and I would remand this matter to the Board for pur poses of applying the standard. Accordingly, I respectfully dissent.

I. In analyzing this case, I rely heavily upo n the Board's motivation for promulgating the Final Rule, as well as the process it followed in doing so. Accordingly, I wi ll 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 Memor ial Hosp. v. NLRB, 991 F.2d 1146, 1148 (3d Cir. 1993) (citing Pu b.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, ma ny disputes arose regarding the appropriate bargaining units in the health care industry, and the Board and the courts of appe als struggled to resolve these disputes, often disagreeing on the appropriate test to apply to make appropriate bargaining unit d eterminations. 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 o n history of separate representation and community of interest t o conclude registered nurses are entitled to separate bargaini ng unit); NLRB v. St. Francis Hospital of Lynwood, 601 F.2d 404 (9 th Cir. 1979) (favoring a "disparity of interests" standard over a "community of interests" one); Electrical Workers IBEW Local 4 74 (St. Francis Hospital) v. NLRB, 814 F.2d 697 (D.C. Cir. 1987) (disapproving of the "disparity of interests" stand ard); seealso Collective Bargaining Units in the Healthcare Indus try, 52 Fed. Reg. 25,142 (July 2, 1987) (notice of proposed rulemaking) (collecting cases and explaining changes in jurispr udence). By the late 1980s, the Board had become ve ry 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 ind ustry: "[T]here is no one, generally phrased test for dete rminingappropriate units in this industry that has met wit h success in

the various circuit courts of appeal, and, unfortun ately, 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 B oard engaged in notice and comment rulemaking in the late 1980s, with the goal of creating a Rule that would limit the need for "l engthy, 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, 1 988) (second notice of proposed rulemaking). The Board proceede d 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 acu te care hospitals generally, "while not creating such undes irable results as excessive proliferation, interruption in the del ivery of health care services, jurisdictional disputes, wage whipsawing, and the like." Id. In order to accomplish this ta sk, 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 r ulemaking). Among the factors to be considered [when determining the appropriate bargaining uni ts for acute care hospitals] will be uniquene ss 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 acu te care hospitals, see Majority Opinion, typescript at 7-8, and declaring that "[e]xcept in extraordinary circumstances and i n circumstances in which there are existing non-confo rming units, the [eight units] shall be appropriate units, and t he onlyappropriate units, for petitions filed pursuant to section 9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor R elations Act . . . ." Id. (emphasis added). Under the Final Rule, then, acute care hos pitals are allowed eight, and only eight, bargaining units. S ee American Hospital Association v. NLRB, 499 U.S. 606, 608 (19 91) (upholding the validity of the Final Rule). Further, the Fina l Rule necessarily permits only one bargaining unit of ski lled maintenance workers at an acute care hospital unles s nonconforming units already exist or there are extraor dinary circumstances. In the case of existing non-conform ing units,however, where the Union itself seeks to open up th e unit to

residual skilled maintenance workers, it is require d that "allunrepresented employees residual to the existin g unit or units be included in an election to represent them." St. Jo hn's Hospital, 307 NLRB 767, 768 (1992) (emphasis added).

B. I think that the Board's motivation for pr omulgating the Final Rule, as well as the process it followed in doing so, demonstrates that the NLRB sought to end the case b y case application of the community of interest analysis w hen determining the appropriate bargaining units in acu te care hospitals. The Board engaged in years of notice an d comment, collecting empirical evidence to develop appropriat e categories of workers in acute care hospitals in order to avoi d the difficulties experienced by the Board and the court s in determining the appropriate bargaining units for ho spitals. It is my view that, with the promulgation of the Final Rule, the Board, and necessarily any reviewing courts, were p ut out of the business of applying the community of interest test to determine appropriate bargaining units in acute care hospital s. I therefore conclude that the Board abused its discretion when it applied the community of interes t 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 work ers. That the community of interest test was applied here to dete rmine whether workers in similar job categories but different loc ations should be part of the same bargaining unit, not whether wo rkers in different job categories should, does not alter my conclusion. The Final Rule was intended to prevent the prolifer ation of bargaining units in the health care industry. The Board's decision below and the majority's decision today, h owever, allow for the presence of multiple units of skilled maint enance workers in one acute care hospital; this is directly contra ry to the

Board's own Final Rule.

II. In rejecting the application of the commun ity of interest test, however, I do not necessarily conclu de that the Final Rule requires that the Montefiore skilled mai ntenance workers automatically be considered a residual non- conforming unit which should be included in the same bargainin g unit as the Presbyterian skilled maintenance workers. As the m ajority itself correctly notes, the Final Rule "does not circumscr ibe or guide

the NLRB's discretion to determine the facilities t o be included in a unit when health care providers merge," Major ity Opinion, typescript at 17, but merely enunciates eight diffe rent bargaining units by job category. Instead, I think that the appropriate question for the Board is whether the F inal 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 h istorically independent health care providers that comprise the UPMC such that the UPMC itself could ultimately have forty un its (eightbargaining 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 bargain ing unit at the Presbyterian complex is a non-conforming unit i n 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 f rom Montefiore, must be included in the election under St. John's Hospital, 307 NLRB 767 (1992). If, however, the Fi nal Rule applies to each of the five health care units indep endently, then the only residual employees to be included in the P resbyterian complex's unit of skilled maintenance workers are t he telecommunications specialists. I believe this question is answered by app lying the rebuttable presumption that single-facility units a re 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 d ifferent facilities operated by the same employer should be part of the same bargaining unit, or whether each facility shou ld have its own bargaining unit. According to Manor Healthcare, "[t]he Boar d has long held . . . that a single facility unit geographical ly separated from other facilities operated by the same employer is presumptively appropriate for the purpose of collec tive bargaining." Id. at 225. The rationale behind thi s 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 disti nct group, physically separated from the employees in other outlets of the chain; t hey generally perform related functions under immediate supervision apart from employees in the other outlets, and thus their problems and grievances are peculiarly their own an d not necessarily shared with employees in t he

other outlets. Id. (citing Haag Drug Co., 169 NLRB 877, 877-78 (19 68). An employer may rebut this presumption, however, upon a "showing of circumstances that militate against its appropriate ness." Id. In order to determine whether the application of th e 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, th e functional integration of the facilities, the administrative c entralization of the facilities, common supervision, and bargaini ng 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 applicati on of the rebuttable single-facility presumption appropriate in just the context that exists here. In discussing hospital m ergers andconsolidations, 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 faciliti es." 53 Fed. Reg. at 33903 (second notice of proposed rulemaking ). It then explained that such determinations would continue t o 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 rebuttab le singlefacility presumption to cases similar to the instan t 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 unit s are appropriate in merged hospital context); Children's Hospital of San Francisco, 312 NLRB 920, 928 (1993) (same), enf orced sub nom.California Pacific Medical Center v. NLRB, F .3d. , 1996 WL 333692 (9th. Cir. 1996); see also West Jersey Healt h System, 293 NLRB at 752 (finding the employer's multifacility h ospital rebutted the single-facility presumption and requir ed multifacility units). The majority believes, however, that the s inglefacility presumption should not be applied in this case. It reasons that, because the Presbyterian complex is c omprised 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. Majori ty 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 sam e hospital at the same site, their bargaining unit is a multi-fac ility unit. As I understand it, however, the fact that one hosp ital is comprised of several different buildings does not m ean that its workers' bargaining units are multi-facility bargai ning 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 Englan d Health Care Employee Union, 318 NLRB No. 3 (1995), 1995 WL 4683 26 at *4, *16 (applying the single-facility presumption to a psyc hiatric hospital comprised of "several connected and unconn ected 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-facili ty unit. While true that the Presbyterian complex is made up of eight separate buildings, these buildings comprise the sa me health care facility and always have; by all indications, the m aintenance workers in the eight buildings comprising the Presb yterian complex always have been members of the same bargai ning unit. The question for us to answer, I believe, is whethe r the unit should continue to be a single-facility unit in lig ht of the

merger.

III.I recognize that some of the factors to be considered

in determining whether the single-facility presumpt ion is

rebutted are similar or identical to those consider ed in applying the community of interest analysis. Compare NLRB v . St. Francis College, 562 F.2d 246, 249 (3d Cir. 1977) (noting t hat factors applied in the community of interest test include, inter alia, frequency of employee interchange, geographic proxi mity, integration of production processes, and history of collective bargaining) with West Jersey Health Systems, 293 NL RB at 751 (noting that factories considered in determining wh ether singlefacility presumption has been rebutted include, int er alia, employee interchange, geographic proximity, functio nal integration, administrative centralization, and bar gaining history). Indeed, I concede that I have found no c ases in which the difference between the application of the commu nity of interest analysis and the rebuttable single-facilit y presumption is discussed. I nonetheless think that the way in which the standards are applied are different and may materia lly affect the

outcome in this case. Most importantly, in applying the single-f acility presumption the Board looks at the facilities at is sue 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 a nalysis, the Board did not consider only the integration of the service, maintenance and technical employees. Rather, it lo oked at the functional integration of the nursing homes as a wh ole, including "joint activities or interaction for patient care," "joint outings for area patients," transfers of patients a nd employees, as well as administrative centralization and geogra phic proximity. Id. Similarly, when the Board applied the rebuttable single-facility presumption in West Jersey Health S ystem, it looked at the degree of employee integration for al l hospital employees, including nurses, skilled maintenance wo rkers, supply room employees and clerks in the medical records de partment. West Jersey Health System, 293 NLRB at 750. By examining the facilities as a whole, th e Board can arrive at a conclusion that applies to all of the b argaining units for all of the different job categories. Thu s, if the Board concludes that the single-facility presumptio n applies to the Presbyterian complex, any other bargaining unit s it may have, such as nurse units or guard units, would also be s ingle-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 enti re UPMC. Under the majority's reasoning, by contras t, the Presbyterian skilled maintenance workers unit could be found to lack a community of interest with the Montefiore wo rkers, but the

nurses unit could be found to share one. That woul d mean the UPMC management could be required to negotiate with two skilledmaintenance 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 u nits.

IV. Accordingly, I would deny enforcement of t he 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-findin g on the issue of employee interchange among all employees at all the historically independent hospitals that comprise th e UPMC as there is insufficient evidence on the record regard ing this point.