United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 15, 2022 Decided July 8, 2022

No. 21-1111

TEMPLE UNIVERSITY HOSPITAL, INC.,

PETITIONER/CROSS-RESPONDENT

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT/CROSS-PETITIONER

TEMPLE ALLIED PROFESSIONALS, PENNSYLVANIA 

ASSOCIATION OF STAFF NURSES AND ALLIED PROFESSIONALS,

INTERVENOR

Consolidated with 21-1124

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board

Shannon D. Farmer argued the cause for petitioner/crossrespondent. With her on the briefs were Meredith Swartz 

Dante and Rebecca A. Leaf.

Eric Weitz, Attorney, National Labor Relations Board, 

argued the cause for respondent/cross-petitioner. With him on 
2

the brief were Jennifer A. Abruzzo, General Counsel, Ruth E. 

Burdick, Deputy Associate General Counsel, David S. 

Habenstreit, Assistant General Counsel, and Kira Dellinger 

Vol, Supervisory Attorney.

Jonathan Walters argued the cause for intervenor Temple 

Allied Professionals, Pennsylvania Association of Staff Nurses 

and Allied Professionals in support of respondent/crosspetitioner. Claiborne S. Newlin entered an appearance.

Before: SRINIVASAN, Chief Judge, HENDERSON and 

JACKSON, Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.

SRINIVASAN, Chief Judge: For more than four decades, 

labor relations between Temple University Hospital and the 

professional and technical employees working there occurred 

under the jurisdiction of the Pennsylvania Labor Relations 

Board. In 2015, however, the labor union representing those 

employees petitioned the National Labor Relations Board to 

exercise jurisdiction over its relationship with the Hospital. 

Over the Hospital’s objections, the NLRB granted the petition, 

asserted jurisdiction, and certified the union as the 

representative of an expanded unit of employees.

Dissatisfied with that result, the Hospital refused to 

bargain with the union and eventually filed a petition for review 

in this court. Although the Hospital raised several arguments, 

we considered only one: its contention that the union was 

judicially estopped from invoking the NLRB’s jurisdiction 

because the union had previously insisted that the NLRB in fact 

 Circuit Judge, now Justice, Jackson was a member of the panel 

at the time the case was argued but did not participate in the opinion.
3

lacked jurisdiction. Siding with the Hospital, we held that the 

NLRB had misapplied the relevant judicial-estoppel analysis 

and remanded for further proceedings. See Temple Univ. 

Hosp., Inc. v. NLRB, 929 F.3d 729, 735–37 (D.C. Cir. 2019).

On remand, the NLRB again asserted jurisdiction over the 

Hospital after determining that principles of judicial estoppel 

are inapplicable. The Hospital continues to resist that result, 

and it renews the additional arguments we had no occasion to 

address in 2019. Because the Hospital identifies no error in the 

NLRB’s decision, we deny the petition for review and grant the 

Board’s cross-application for enforcement.

I.

A.

The National Labor Relations Act, 29 U.S.C. § 151 et seq., 

guarantees employees the right “to bargain collectively through 

representatives of their own choosing.” 29 U.S.C. § 157. 

Section 8 of the Act bars employers from engaging in a host of 

unfair labor practices. Among them, an employer may not

“refuse to bargain collectively with the representatives of his 

employees.” Id. § 158(a)(5). Although the NLRA defines 

“employer” broadly, the statute specifically exempts “any State 

or political subdivision thereof.” Id. § 152(2).

Under Section 9 of the Act, a labor organization or group 

of employees may file a petition with the National Labor 

Relations Board (NLRB or Board) alleging that a substantial 

number of employees wish to be represented for collective 

bargaining and that their employer has declined to recognize 

their representative. Id. § 159(c)(1)(A). Upon the filing of a

petition, the Board must decide “the unit appropriate for the 

purposes of collective bargaining.” Id. § 159(b). A 
4

representative becomes the exclusive representative of 

employees in a particular collective-bargaining unit upon a 

majority vote of the relevant employees and the Board’s 

certification of the results. Id. § 159(a)–(c).

The Board has provided specific instruction concerning 

the appropriate composition of bargaining units in the health 

care setting since 1989, when it promulgated what has become 

known as the Health Care Rule. See 29 C.F.R. § 103.30; Am. 

Hosp. Ass’n v. NLRB, 499 U.S. 606, 608, 615–17 (1991). 

Applicable to acute-care hospitals, the Health Care Rule sets 

out eight units as the “only appropriate units” for purposes of 

representation petitions filed under the NLRA. 29 C.F.R. 

§ 103.30(a). Although units not described in the Health Care 

Rule are deemed nonconforming, id. § 103.30(f)(5), the Rule 

provides that combinations of the enumerated units may be 

appropriate and excepts preexisting nonconforming units from 

its requirements, id. § 103.30(a).

The Board, of course, is not the only labor relations 

authority in the country. Although the Board retains exclusive 

jurisdiction over activities “arguably subject” to the NLRA, 

state labor boards administer and enforce their own labor laws 

against entities outside the Board’s jurisdiction. San Diego 

Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–46 (1959). 

Occasionally, the Board will exercise jurisdiction over a 

particular bargaining relationship previously under the 

supervision of a state agency. In such circumstances, the Board 

generally extends “comity” to the state agency’s elections and 

certifications, “provided that the state proceedings reflect the 

true desires of the affected employees, election irregularities 

are not involved, and there has been no substantial deviation 

from due process requirements.” Allegheny Gen. Hosp., 230 

N.L.R.B. 954, 955 (1977). When it extends comity, the Board 
5

accords the “same effect to the elections and certifications of 

responsible state government agencies” as its own. Id. 

B.

Our 2019 opinion in this case sets out the relevant factual 

background, see Temple Univ. Hosp., 929 F.3d at 731–33, but 

we recount the key points here. Temple University Hospital is 

an acute-care hospital located in Philadelphia, Pennsylvania. 

Acquired in 1910 by Temple University—a state-related 

university also based in Philadelphia—the Hospital initially 

functioned as an unincorporated division of the University. 

That changed in 1995, when the Hospital became a distinct 

nonprofit corporation. The sole shareholder of that corporation 

is Temple University Health System, a holding company the 

University created for its healthcare-related assets. As an 

independent corporate entity, the Hospital generally conducts 

its own collective bargaining and handles personnel decisions 

for non-executive employees. But the University and the 

Hospital nonetheless retain a number of close operational and 

budgetary ties.

In 2005, the Temple Allied Professionals, Pennsylvania 

Association of Staff Nurses and Allied Professionals (the 

Union) filed a petition with the Pennsylvania Labor Relations 

Board (PLRB) to represent a previously certified bargaining 

unit of professional and technical employees—a unit that a 

different union had represented since the 1970s. In the ensuing 

proceedings, both the Union and the Hospital contended—over 

the then-incumbent union’s opposition—that the PLRB, rather 

than the NLRB, properly had jurisdiction over the Hospital. 

The PLRB agreed, and the Union prevailed in the subsequent 

election. It has represented the unit ever since.
6

Ten years later, in 2015, the Union petitioned the NLRB 

to assert jurisdiction over its relationship with the Hospital, 

notwithstanding the Union’s repeated prior invocations of the 

PLRB’s authority. The specific basis for the Union’s petition 

was its desire to add two classifications of unrepresented 

Hospital employees—professional medical interpreters and 

transplant financial coordinators, comprising a total of eleven 

individuals—to the existing professional-technical bargaining 

unit. The petition asked the NLRB to conduct an election in 

which the petitioned-for employees would vote on whether to 

join the existing unit.

The Hospital mounted several defenses. First, it 

contended that the Union should be judicially estopped from 

invoking the Board’s jurisdiction because of the Union’s prior 

representations that the PLRB, not the NLRB, had jurisdiction 

over the Hospital. Second, it maintained that the Hospital was 

a “political subdivision” of Pennsylvania and therefore exempt 

from the Board’s jurisdiction. See 29 U.S.C. § 152(2). Third, 

it argued that the Board should decline to exercise its 

jurisdiction on account of the close ties between the Hospital 

and the University. Finally, it submitted that the Board should 

not extend comity to the PLRB’s certification of the 

professional-technical unit.

An Acting Regional Director of the NLRB ruled in favor 

of the Union. Rejecting each of the Hospital’s arguments, he 

asserted jurisdiction over the Hospital and extended comity to 

the PLRB’s certification of the professional-technical unit. 

The Union won the ensuing election among the petitioned-for 

interpreters and financial coordinators, and the Acting 

Regional Director certified it as the exclusive collectivebargaining representative of the newly expanded professionaltechnical unit.
7

The Board affirmed the Acting Regional Director’s 

decision. Seeking to contest the validity of the Board’s 

certification of the Union, the Hospital refused to bargain with 

the Union. The Union filed an unfair-labor-practice charge 

with the Board, which found that the Hospital had violated the 

NLRA. The Hospital then lodged a petition for review in this 

court. 

Although the Hospital briefed each of the four primary 

arguments it had pressed before the Board, we reached only its 

first contention concerning judicial estoppel. We agreed with 

the Hospital that the Board had misapplied the judicial-estoppel 

analysis prescribed by the Supreme Court. Temple Univ. 

Hosp., 929 F.3d at 735–36 (citing New Hampshire v. Maine, 

532 U.S. 742, 750–52 (2001)). We remanded the case for 

further proceedings.

On remand, the Board again declined to estop the Union 

from invoking its jurisdiction. But its path to that result was 

different. Instead of assuming the availability of judicial 

estoppel in Board proceedings and nonetheless declining to 

apply it based on a balancing of the relevant factors, the Board 

this time concluded that judicial estoppel “is not available in 

proceedings . . . where the Board’s jurisdiction is in issue,” 

such that the doctrine’s application “could compel the Board to 

surrender its jurisdiction.” Supplemental Decision and Order 

at 1–2, J.A. 169–70. With judicial estoppel off the table, the 

Board reaffirmed its prior determination that the Hospital’s 

refusal to bargain with the Union violated the NLRA. Id. at 4,

J.A. 172.

The Hospital once again petitions for review, and the 

Board cross-applies for enforcement of its order. The Union 

has intervened in support of the Board’s decision.
8

II.

The Hospital contends that the Board improperly asserted 

jurisdiction over this dispute and erroneously extended comity 

to the PLRB’s prior certification of the professional-technical 

bargaining unit. A court “must uphold the judgment of the 

Board unless its findings are unsupported by substantial 

evidence, or it acted arbitrarily or otherwise erred in applying 

established law to the facts of the case.” Novato Healthcare 

Ctr. v. NLRB, 916 F.3d 1095, 1100 (D.C. Cir. 2019). We find 

no error in the Board’s decision.

A.

The Hospital first argues that the doctrine of judicial 

estoppel should have foreclosed the Union’s attempt to invoke 

the Board’s jurisdiction. Judicial estoppel generally “prevents 

a party from asserting a claim in a legal proceeding that is 

inconsistent with a claim taken by that party in a previous 

proceeding.” New Hampshire, 532 U.S. at 749 (quoting 18 

Moore’s Federal Practice § 134.30 (3d ed. 2000)). According 

to the Hospital, the Union’s prior insistence that the PLRB—

and not the NLRB—properly had jurisdiction over the Hospital 

should estop the Union from reversing course in this case.

Whether a nonjudicial tribunal such as the Board “may 

itself invoke judicial estoppel appears to be an issue of first 

impression.” Temple Univ. Hosp., 929 F.3d at 734. But we 

need not consider that question here, for the Board did not 

resolve it. Instead, the Board made a threshold determination 

that, while judicial estoppel might be available in certain Board 

proceedings, the doctrine is unavailable when its 

“application . . . could compel the Board to surrender its 

jurisdiction.” Supplemental Decision and Order at 2, J.A. 170. 

That is, the Board concluded that a party cannot rely on judicial 
9

estoppel to prevent the Board from entertaining a matter that 

would otherwise fall within its statutory authority.

As judicial estoppel is an “equitable doctrine” invoked by 

a tribunal “at its discretion,” New Hampshire, 532 U.S. at 750 

(citation omitted), we review the Board’s “decision . . . not to 

invoke[] judicial estoppel for abuse of discretion.” Temple 

Univ. Hosp., 929 F.3d at 734. In doing so, we confine our 

review to the adequacy of the reasons articulated in the Board’s 

order. Erie Brush & Mfg. Corp. v. NLRB, 700 F.3d 17, 23 

(D.C. Cir. 2012). The Board did not abuse its discretion in 

determining that judicial estoppel is unavailable in cases in 

which the Board’s jurisdiction is at issue.

The Board centrally grounded that conclusion in “[f]ederal 

labor policy,” which, to the Board, “weighs heavily against 

allowing judicial estoppel to be used as a ground to limit [its]

jurisdiction.” Supplemental Decision and Order at 3, J.A. 171. 

The Board located the relevant pro-enforcement policy in 

Section 10(a) of the NLRA. See 29 U.S.C. § 160(a). That 

provision “empower[s]” the Board “to prevent any person from 

engaging in any unfair labor practice (listed in [Section 8] of 

[the Act]) affecting commerce,” a power that “shall not be 

affected by any other means of adjustment or prevention that 

has been or may be established by agreement, law, or 

otherwise.” Id.

The Board reasoned that, if judicial estoppel were to apply

here, the PLRB would have jurisdiction over all representation 

petitions and unfair-labor-practice charges brought by the 

Union against the Hospital and could issue rulings the Board 

would have no power to review. The Board declined to 

establish a doctrine under which “the power Congress endowed 

[the Board] with in Section 10(a) could be surrendered to the 

parties and the history of their petition-filing and litigation 
10

choices over time.” Supplemental Decision and Order at 4,

J.A. 172. “Even assuming Section 10(a) would permit this,” 

the Board explained, “the federal policy embodied in that 

statutory provision convinces us that we ought not do so.” Id.

The Board permissibly concluded that Congress’s broad 

conferral of statutory authority to prevent “any person” from 

committing “any unfair labor practice” affecting commerce—

notwithstanding the existence of “any other” law—militated 

against enabling judicial estoppel to prevent the Board from 

exercising its authority in cases in which it could otherwise act. 

29 U.S.C. § 160(a) (emphases added). The Board “has the 

primary responsibility for developing and applying national 

labor policy.” NLRB v. Curtin Matheson Sci., Inc., 494 U.S. 

775, 786 (1990). And we cannot say that the Board abused its 

discretion in determining that “plac[ing] [its] jurisdictional 

powers in the hands of litigants” would be at odds with 

Congress’s broad empowerment of the Board to enforce the 

NLRA in cases satisfying the Act’s jurisdictional prerequisites. 

Supplemental Decision and Order at 3, J.A. 171; cf. 

Hammontree v. NLRB, 925 F.2d 1486, 1491–92 (D.C. Cir. 

1991) (construing Section 10(a)’s “affirmative grant of 

authority to the Board” as providing that “no one other than the 

Board shall diminish the Board’s authority over [unfair-laborpractice] claims”); NLRB v. Reliance Fuel Oil Corp., 371 U.S. 

224, 226 (1963) (“This Court has consistently declared that in 

passing the [NLRA], Congress intended to and did vest in the 

Board the fullest jurisdictional breadth constitutionally 

permissible under the Commerce Clause.”).

The Hospital points out that the Board’s jurisdiction is 

discretionary and not mandatory. The Board, though, 

recognized as much, acknowledging that it “does not always 

exercise the power Congress granted it in Section 10(a).” 

Supplemental Decision and Order at 4, J.A. 172. The fact that 
11

the Board may at times decline to exercise its jurisdiction is by 

no means inconsistent with its choice to avoid a regime in 

which the petition-filing practices of private parties—rather 

than the Board’s own discretionary decisions—could prevent 

it from hearing a dispute it would otherwise entertain.

In addition to its reliance on federal labor policy, the Board 

also considered judicial precedent and its own decisions. As 

for the former, the Board observed that “federal courts have 

generally declined to apply judicial estoppel to create or defeat 

jurisdiction.” Id. at 3, J.A. 171 (citing City of Colton v. Am. 

Promotional Events, Inc.-West, 614 F.3d 998, 1006 n.6 (9th 

Cir. 2010); Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 

2004); Da Silva v. Kinsho Int’l Corp., 229 F.3d 358, 361 (2d 

Cir. 2000)). As for its own precedent, the Board relied on two 

decisions in which it asserted jurisdiction over bargaining 

relationships notwithstanding the parties’ historically 

inconsistent positions on whether jurisdiction in fact existed. 

Id. at 4, J.A. 172 (citing Wyndham West at Garden City, 307 

N.L.R.B. 136 (1992) (advisory opinion); We Transport, Inc., 

215 N.L.R.B. 497 (1974)).

The Hospital is correct that neither judicial nor 

administrative precedent compelled the Board to conclude that 

litigants cannot use judicial estoppel as a means of limiting the 

Board’s jurisdiction. But the Board did not suggest otherwise. 

It instead considered nonbinding judicial precedent only as a 

“preliminar[y]” matter, and it acknowledged that court 

decisions did not uniformly point in one direction. Id. at 3, J.A. 

171 (citing Sexual Minorities Uganda v. Lively, 899 F.3d 24, 

34 (1st Cir. 2018)). And with regard to its own precedent, it

recognized that the applicability of judicial estoppel in Board 

proceedings is an issue it “has not squarely addressed.” Id. at 

2, J.A. 170. At bottom, the Board permissibly reasoned that 

judicial and administrative precedent generally reinforced its 
12

policy-driven decision to make judicial estoppel unavailable in 

the circumstances of this case.

Contrary to the Hospital’s contention, the Board did not

flout this court’s 2019 decision in this case. There, we

remanded in part “for the Board to determine in the first 

instance whether judicial estoppel is available in NLRB 

proceedings.” Temple Univ. Hosp., 929 F.3d at 737. The 

Board could save that broader question for another day and 

determine that, even assuming judicial estoppel may be

available in some proceedings, it cannot be used to defeat the 

Board’s jurisdiction. 

B.

The Hospital next challenges the Board’s determination 

that the Hospital is not a political subdivision of Pennsylvania 

exempt from the NLRB’s jurisdiction. We see no basis to set 

aside the Board’s conclusion.

Section 8 of the NLRA enumerates unfair labor practices 

that an “employer” may not perform, 29 U.S.C. § 158(a), and 

the Act defines “employer” to exclude “any State or political 

subdivision thereof,” id. § 152(2). Although the statute does 

not further define “political subdivision,” the Supreme Court 

has upheld the Board’s construction of the term to mean an 

entity that is either “(1) created directly by the state, so as to 

constitute [a] department[] or administrative arm[] of the 

government, or (2) administered by individuals who are 

responsible to public officials or to the general electorate.” 

NLRB v. Nat. Gas Util. Dist. of Hawkins Cty., 402 U.S. 600, 

604–05 (1971). An entity satisfying either prong of that test is 

not a statutory “employer” and falls outside the Board’s 

jurisdiction. Midwest Div.-MMC, LLC v. NLRB, 867 F.3d 

1288, 1296 (D.C. Cir. 2017).
13

All agree that the Hospital was not “created directly by the 

state.” Hawkins Cty., 402 U.S. at 604. The sole question, then, 

is whether the Hospital is “administered by individuals who are 

responsible to public officials or to the general electorate.” Id.

at 604–05. Under that prong of the Hawkins County test, “the 

pertinent question is ‘whether a majority of the individuals who 

administer the entity . . . are appointed by and subject to 

removal by public officials.’” Midwest Div.-MMC, 867 F.3d 

at 1297 (alteration in original) (quoting Pilsen Wellness Ctr., 

359 N.L.R.B. 626, 628 (2013)). In Midwest Division-MMC, 

the employer (also an acute-care hospital) offered no evidence 

that the members of the relevant peer review committee (the 

entity in question) were either appointed or removable by 

public officials. In those circumstances, the Board reasonably 

determined that the hospital committee did not qualify as an 

exempt political subdivision. Id. 

The same reasoning controls here. As the Acting Regional 

Director explained, “no government entity has the authority to 

appoint or remove a Hospital board member, and no member 

of the board . . . is a government official or works for a 

government entity.” Regional Director’s Decision and 

Direction of Election at 14, J.A. 82. The Hospital’s board 

members, rather, are “subject solely to private appointment and 

removal.” Id. Because a majority of the Hospital’s board 

members are neither appointed by nor subject to removal by 

public officials (indeed, none are), the Hospital is not 

“administered by individuals who are responsible to public 

officials or to the general electorate.” Hawkins Cty., 402 U.S. 

at 604–05.

Invoking a non-precedential advice memorandum issued 

by the NLRB’s General Counsel, the Hospital points to 

additional factors purportedly establishing that it is an exempt 
14

political subdivision. As the Board explained, however, 

“[w]here an examination of the appointment-and-removal 

method yields a clear answer to whether an entity is 

administered by individuals who are responsible to public 

officials or to the general electorate, the Board’s analysis 

properly ends.” Order Granting Review in Part at 2 n.2, J.A. 

147 (quotation marks omitted) (quoting Pa. Virtual Charter 

Sch., 364 N.L.R.B. No. 87, at *13 (2016)). The Hospital does 

not challenge that controlling standard—a standard that this 

court and numerous others have consistently applied. See, e.g., 

Midwest Div.-MMC, 867 F.3d at 1297; Voices for Int’l Bus. & 

Educ., Inc. v. NLRB, 905 F.3d 770, 776–77 (5th Cir. 2018) 

(collecting cases); cf. Yukon-Kuskokwim Health Corp. v. 

NLRB, 234 F.3d 714, 717 (D.C. Cir. 2000) (“[T]he Board has 

long and reasonably preferred bright line rules in order to avoid 

disputes over its jurisdiction.”). The Board thus reasonably 

determined that the Hospital does not qualify as a political 

subdivision of Pennsylvania.

C.

The Hospital next contends that, insofar as the Board had 

jurisdiction, the Board should have declined to exercise it. It is 

true that the Board may properly decline to exercise 

jurisdiction if it concludes that “the policies of the [NLRA] 

would not be effectuated by its assertion of jurisdiction.” 

NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 

675, 684 (1951); accord Temple Univ. Hosp., 929 F.3d at 732 

n.*. That decision, though, is inherently a discretionary one. 

While the Board may not act arbitrarily or cause an employer 

unfair and substantial prejudice, its discretionary determination 

to assert jurisdiction is otherwise “essentially unreviewable.” 

Hum. Dev. Ass’n v. NLRB, 937 F.2d 657, 661 (D.C. Cir. 1991) 

(quoting NLRB v. Kemmerer Vill., Inc., 907 F.2d 661, 663–64 

(7th Cir. 1990)). Indeed, we have long emphasized “the broad 
15

scope of the Board’s discretion in determining whether an 

abstention from jurisdiction is likely to promote the objectives 

of the Act.” Herbert Harvey, Inc. v. NLRB, 424 F.2d 770, 782 

(D.C. Cir. 1969). “[I]n the absence of extraordinary 

circumstances whether jurisdiction should be exercised is for 

the Board, not the courts, to determine.” Id. at 783 (quoting 

NLRB v. WGOK, Inc., 384 F.2d 500, 502 (5th Cir. 1967)).

The Hospital nonetheless contends that the Board abused 

its discretion by exercising jurisdiction in this case. The 

Hospital emphasizes its close ties to the University, over which 

the Board a half-century ago declined to assert jurisdiction in 

light of the University’s “unique relationship” with 

Pennsylvania. See Temple Univ., 194 N.L.R.B. 1160, 1161 

(1972). As the Board explained, however, its more recent 

practice has been to “assert jurisdiction over an employer, 

despite its close ties with an exempt government entity, as long 

as it meets the definition of employer set out in Section 2(2) of 

the Act and the applicable monetary jurisdictional standards.” 

Decision on Review and Order at 2, J.A. 149 (citing Mgmt. 

Training Corp., 317 N.L.R.B. 1355, 1358 (1995)). The Board 

reasonably found both criteria satisfied, explaining that the 

Hospital “possesses sufficient control over its employees’ 

terms and conditions of employment” and that there was “no 

dispute that the [Hospital] meets the Board’s monetary 

jurisdictional standards.” Id.

The Board also permissibly rejected the Hospital’s claim 

that asserting jurisdiction would substantially prejudice the 

Hospital by disrupting existing bargaining relationships under 

Pennsylvania law. As the Board reasonably determined, “[t]he 

stable bargaining relationship has been between the [Hospital] 

and Union, not between the [Hospital] and the PLRB.” Id. at 

3, J.A. 150 (quoting MCAR, Inc., 333 N.L.R.B. 1098, 1104 

(2001)). The Board explained that it has repeatedly exercised 
16

jurisdiction even when a state agency such as the PLRB had 

previously asserted jurisdiction. Id. And the Board reasonably 

declined to consider the Union’s purpose for invoking the 

Board’s jurisdiction, as well as the Hospital’s offers to add the

petitioned-for employees to the existing bargaining unit under 

Pennsylvania law. While the Board could have afforded 

greater weight to such considerations, its decision not to do so

evinces no abuse of discretion.

D.

The Hospital’s final contention is that the Board 

erroneously extended comity to the PLRB’s previous 

certification of the professional-technical bargaining unit. The 

Board, the Hospital maintains, should not have accorded the 

“same effect to the elections and certifications of” the PLRB as

the Board’s own, Allegheny Gen. Hosp., 230 N.L.R.B. at 955, 

but rather should have required a new representation petition, 

held a federally administered election, and itself certified the 

bargaining unit upon a majority vote of the relevant employees.

The Hospital contends that extending comity was 

improper for two reasons: (i) the PLRB-certified unit is 

inconsistent with the Board’s Health Care Rule; and (ii) the 

Board arbitrarily departed from its own precedent. Neither 

argument has merit.

1.

Under the Board’s Health Care Rule, two of the eight 

permissible bargaining units in acute-care hospitals are “[a]ll 

professionals except for registered nurses and physicians” and 

“[a]ll technical employees.” 29 C.F.R. § 103.30(a)(3)–(4). 

Any deviating unit is nonconforming—except that, as relevant 

here, the Rule allows both combinations of the eight units and 
17

nonconforming units that existed at the time of the Rule’s 

promulgation in 1989. Id. § 103.30(a), (f)(5). In this case, the 

Board determined that both of those exceptions applied. 

Specifically, the PLRB-certified unit was a “combination of 

two of the eight specified units”—i.e., professionals and 

technical employees. Decision on Review and Order at 4, J.A. 

151. Alternatively, “even assuming the unit is nonconforming, it was and still is an ‘existing non-conforming 

unit[]’” within the meaning of the Rule because the unit was 

originally certified by the PLRB in 1975 and its composition 

“has largely remained the same” in the years since. Id. (quoting 

29 C.F.R. § 103.30(a)).

We sustain the Board’s decision on that latter ground, 

which the Board made clear was an independent basis for its 

order. “We accord the Board an especially wide degree of 

discretion on questions of representation.” Rush Univ. Med. 

Ctr. v. NLRB, 833 F.3d 202, 206 (D.C. Cir. 2016) (quotation 

marks and citation omitted). The Board acted within its 

discretion in determining that the professional-technical 

bargaining unit was an “existing” unit at the time of the Health 

Care Rule’s promulgation. 

The Hospital correctly points out that the unit has changed 

in some respects since its original certification by the PLRB in 

1975. But the Board reasonably determined that the changes 

did not cause the unit to run afoul of the Rule. While the unit 

had a different collective-bargaining representative in 1975, the 

Board permissibly found that the mere change in representation 

did not divest the unit of its existing nonconforming status. 

Decision on Review and Order at 4, J.A. 151; see Crittenton 

Hosp., 328 N.L.R.B. 879, 880 (1999). As for adjustments in 

the unit’s scope, the Board reasonably determined that a unit 

whose composition “has largely remained the same” over the 

past half-century retains its identity as an existing 
18

nonconforming unit. Decision on Review and Order at 4, J.A. 

151. This court has previously upheld the Board’s 

understanding that the mere addition of new employees to a 

preexisting nonconforming unit does not instantly require the 

expanded unit to comply with the Health Care Rule’s strictures. 

See Rush Univ. Med. Ctr., 833 F.3d at 204, 207–09. And to the 

extent the 1975-certified unit contained some employee groups 

that are no longer part of the unit, the unit still represents 

professional and technical employees at the Hospital.

2.

The Hospital contends that the Board’s extension of 

comity in this case constituted an arbitrary departure from its 

decision in Summer’s Living Systems, Inc., 332 N.L.R.B. 275 

(2000). In that proceeding, the Board declined to extend 

comity to a unit certified by a state board that lacked 

jurisdiction at the time it issued the certification. According to 

the Hospital, if the Union is correct that the Board has 

jurisdiction over the Hospital, then the Board also had 

jurisdiction in 2006, meaning that the PLRB lacked jurisdiction 

at the time it most recently certified the unit. Under Summer’s 

Living Systems, the Hospital maintains, the Board could not 

extend comity to the PLRB’s purportedly invalid certification.

The Board, however, adequately accounted for Summer’s 

Living Systems and reasonably distinguished that decision. In 

Summer’s Living Systems, the Board considered whether to 

extend comity to a series of certifications issued by a Michigan 

state labor agency. As Summer’s Living Systems explained, the 

Michigan Court of Appeals later determined that the state 

agency’s jurisdiction to issue the relevant certifications had 

been preempted by the Board’s jurisdiction. In those 

circumstances, the Board declined to extend comity to the 
19

preempted state certifications. Summer’s Living Sys., 332 

N.L.R.B. at 276–77 & n.7, 286.

The Board thus explained here that Summer’s Living 

Systems, unlike this case, involved an “intervening state court 

case” holding that the “state’s jurisdiction over various units of 

employees was pre-empted by the Board’s jurisdiction.” 

Decision on Review and Order at 4–5 n.7, J.A. 151–52. In light 

of those contrasting circumstances, the Board reasonably 

determined that Summer’s Living Systems “does not control” 

this case. Id. Comity to a state agency’s determination, after 

all, is a doctrine aimed at respecting not only the preferences of 

employees and employers, but also the administrative 

processes giving rise to the state agency’s decision. See 

Allegheny Gen. Hosp., 230 N.L.R.B. at 955. The Board could 

permissibly grant comity here while withholding it in 

circumstances in which a state court deems the state labor 

agency to have lacked jurisdiction to issue the certifications to 

which comity might otherwise extend.

* * * * *

For the foregoing reasons, we deny the petition for review 

and grant the Board’s cross-application for enforcement of its 

order.

So ordered.