Temple University Hospital v. NLRB ( 2022 )

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/cross-
respondent. 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
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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/cross-
petitioner. 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.
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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
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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
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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.
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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 collective-
bargaining representative of the newly expanded professional-
technical unit.
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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.
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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-labor-
practice] 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
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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
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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).
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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
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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
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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
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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
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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 non-
conforming, 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
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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
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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.