Application for Enforcement of an Order of the National Labor Relations Board. (Board No. 6-CA-24189). Petition for Review of a Decision and Order of the National Labor Relations Board. (Board No. 6-CA-24189).
Present: Hutchinson, Scirica and Rosenn, Circuit Judges.
HUTCHINSON, Circuit Judge.
Petitioner St. Margaret Memorial Hospital ("St. Margaret") seeks review of an order of the National Labor Relations Board ("NLRB" or "Board") holding that St. Margaret violated sections 8(a)(1) and (5) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C.A. § 158(a)(1), (5) (West 1973). Respondent Board has filed a cross-petition to enforce the order. The International Union of Operating Engineers, Local 95-95A, AFL-CIO ("Union") has intervened in the appeal in support of the Board's order.
Following an election, the Board certified the Union to represent St. Margaret's eighteen skilled maintenance employees, a unit the Board found appropriate under its Final Rule on Collective Bargaining Units in the Health Care Industry ("Rule"), 29 C.F.R. § 103.30 (1992). In deciding the unfair labor practice charges against St. Margaret that are the subject of the petitions we are now reviewing, the Board concluded that St. Margaret violated sections 8(a)(1) and (5) of the Act by refusing to bargain with the Union. The Board rejected St. Margaret's challenge to the appropriateness of the skilled maintenance unit, one of its defenses to the charges of unfair refusal to bargain, and refused to hold an evidentiary hearing on St. Margaret's objections to Union conduct which allegedly had a material effect on the outcome of the election, St. Margaret's second defense.
For the following reasons we will deny St. Margaret's petition for review and grant enforcement of the Board's order.
I. Factual & Procedural History
St. Margaret is a non-profit, acute care hospital located in Pittsburgh. Between 1947 and 1974, non-profit hospitals were exempt from coverage under the NLRA. See 29 U.S.C.A. § 152(2) (West 1973) (amended 1974). Congress repealed this exemption in 1974 as part of the Health-Care Amendment to the NLRA. See Pub. L. No. 93-360, 88 Stat. 395 (1974) (codified at 29 U.S.C.A. §§ 152(14), 158(d) and (g) (West Supp. 1992)). Because of the many, seemingly interminable disputes concerning what units were appropriate for hospitals as well as the often inconsistent resolution of them, the Board engaged in notice and comment rulemaking in an attempt to formulate a general definition of the bargaining units appropriate in the health care industry. In the Board's First Notice of Proposed Rulemaking, it tentatively determined that a separate unit limited to skilled maintenance employees was not appropriate. See Notice of Proposed Rulemaking, 52 Fed. Reg. 25,142-49 (July 2, 1987), reprinted in 284 N.L.R.B. 1516. In its Second Notice of Proposed Rulemaking, however, it shifted position and decided that a separate skilled maintenance unit would be appropriate. See Second Notice of Proposed Rulemaking, 53 Fed. Reg. 33,900 (September 1, 1988), reprinted in 284 N.L.R.B. 1528. The rulemaking process culminated in the issuance of the Final Rule on April 29, 1989.
Under the Rule, eight separate and distinct bargaining units are presumed to be appropriate in acute care hospitals except in extraordinary circumstances:
§ 103.30 Appropriate bargaining units in the health care industry.
(a) This portion of the rule shall be applicable to acute care hospitals, as defined in paragraph (f) of this section: Except in extraordinary circumstances and in circumstances in which there are existing non-conforming units, the following shall be appropriate units, and the only appropriate units, for petitions filed pursuant to section 9(c)(1)(A)(i) or 9(c)(1)(B) of the National Labor Relations Act, as amended, except that, if sought by labor organizations, various combinations of units may also be appropriate:
(1) All registered nurses.
(3) All professionals except for registered nurses and physicians.
(4) All technical employees.
(5) All skilled maintenance employees.
(6) All business office clerical employees.
(8) All nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards.
Provided That a unit of five or fewer employees shall constitute an extraordinary circumstance.
29 C.F.R. § 103.30(a) (emphasis added and in original). If, however, "extraordinary circumstances" exist, the Board must determine appropriate units by adjudication. Id. § 103.30(b).
On April 27, 1990, in reliance on the Rule, the Union filed a petition with the Board for election and certification as the exclusive bargaining agent for the approximately eighteen skilled maintenance employees at St. Margaret. Because the American Hospital Association ("AHA") had obtained an injunction blocking implementation of the Rule, the Board suspended processing the Union's representation petition until final resolution of the AHA's action attacking the Rule. On April 23, 1991, the United States Supreme Court upheld the validity of the rule in American Hospital Association v. NLRB, 113 L. Ed. 2d 675, 111 S. Ct. 1539 (1991).
Nevertheless, when proceedings before the Board finally commenced in June 1991, St. Margaret challenged the appropriateness of the collective bargaining unit and attempted to present evidence showing that extraordinary circumstances existed requiring the unit to be determined by adjudication. St. Margaret argued that American Hospital Association only affirmed the Board's authority to promulgate the Rule and expressly reserved comment on the appropriateness of any particular units, leaving intact this Court's ...