SAN MIGUEL HOSPITAL CORPORATION, Pеtitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 11-1198, 11-1209, 11-1319, 11-1349.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 10, 2012. Decided Nov. 2, 2012.
1181
Kellie Isbell, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Julie B. Broido, Supervisory Attorney.
Before: BROWN, Circuit Judge, EDWARDS and SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge SILBERMAN.
SILBERMAN, Senior Circuit Judge:
Petitioner, San Miguel Hospital Corp., essentially is challenging the Board‘s determination that a “wall to wall” bargaining unit of the Hospital‘s professional and non-professional employees is appropriate. Although Petitioner unleashes a blizzard of sepаrate arguments, both substantive and procedural, only one—relating to the burden of proof—even gives us pause. We deny the petitions and grant the Board‘s cross-applications for enforcement.
I.
The Hospital is an acute-care facility in Las Vegas, New Mexico. About five years ago the National Union of Hospital and Healthcare Employees District 1199 NM petitioned for an election in a unit combining all on-site professional and nonprofessional employees (excluding, of course, guards).1 The Hospital objected to the unit, contending that certain nurses were statutory supervisors (no longer an issue) and, more importantly, that the Board‘s Health Care Rule, which sets forth the
appropriate units in the health care indus
Except in extraordinary circumstances and in circumstances in which there are existing non-conforming units, the following shall be appropriate units, and the only appropriate units, ... except that, if sought by labor organizations, various combinations of units may also be appropriate:
(1) All registered nurses.
(2) All physicians.
(3) All professionals except for registered nurses and physicians.
(4) All technical employees.
(5) All skilled maintenance employees.
(6) All business office clerical employees.
(7) All guards.
(8) All nonprofessional employees except for technical employees, skilled maintenance employees, business office clerical employees, and guards.
Petitioner also claimed that the Board violated the Rule itself by combining professionals and non-professionals together in the absence of a showing of “extraordinary circumstances.” Although the regional director was obliged to (and did) hold a separate Sonotone election2 among the professionals to determine whether they wished to be part of the wall-to-wall unit, petitioner contended that was insufficient. The Board‘s Regional Director nevertheless found the proposed units appropriate and directed a secret-ballot election to be conducted in the two voting groups on whether they desired Union representation. The Hospital requested Board review of the Regional Director‘s Decision and Direction of Election, but the Board denied this request.
The Board‘s Rеgional Office conducted the election in June 2007, and the Union prevailed. The professionals voted 48 to 19 to be included in the unit with the nonprofessionals, and the two groups together voted 121 to 73 for union representation. The Hospital filed 24 objections to the election, but the hearing officer recommended that all the objections be overruled. A two-member pаnel of the Board then adopted all of the hearing officer‘s findings and recommendations and certified the Union as the exclusive collective-bargaining representative of the Hospital‘s employees.
The Hospital, however, refused to bargain with the Union. The Board‘s General Counsel accordingly issued a complaint against the Hospital, alleging violations of Sections 8(a)(1) and (5) of the Act. Petitioner‘s defense was only that the Union was improperly certified in light of the Hospital‘s objections to the election. The same two-member Board eventually issued an order holding that the Hospital‘s refusal to bargain violated the Act. The Hospital petitioned for review in this Court, and the Board cross-applied for enforcement.
Before we had a chance to resolve this dispute, the Supreme Court decided New Process Steel, L.P. v. NLRB, — U.S. —, 130 S.Ct. 2635, 2638, 177 L.Ed.2d 162 (2010), which held that a delegee group of at least three Board members
The Hospital timely petitioned for review of the Board‘s Refusal-to-Bargain Order, and the Board has cross-applied for enforcement.3
II.
Despite all of petitioner‘s legal maneuvering, the only real question before us is the validity of the Board‘s certification of the Union. The Hospital does not deny that it has never bargained with the Union, so if the certification was valid, it follows apodictically that the Hospital‘s refusal to bargain violated Sections 8(a)(1) and (5) of the Act.
A. The Health Care Rule
The Board rarely uses its rulemaking authority, but the Health Care Rule is a welcome deviation from this trend. Its promulgation in 1989 was a notable event in which the Board responded to differing positions taken by the Board and courts of appeals. See generally St. Margaret Mem‘l Hosp. v. NLRB, 991 F.2d 1146, 1148 (3d Cir. 1993). As we noted above, the Board announced eight possible appropriate units, but indicated that combinations might be appropriate if sought by a labor organization. That occurred here. The union successfully sought to combine six of the groups, excluding only guards and physicians.
The Health Care Rule was upheld by the Supreme Court in American Hospital Ass‘n v. NLRB, 499 U.S. 606, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991), against various challenges. But petitioner brings a somewhat different challenge which (perhaps understandably) was not thought of before—that the Rule violates Section 9(c)(5) of the Act because it endorses the extent of a union‘s organization as the controlling factor in unit determination. It is not immediately apparent to us why the validity of the Rule is a necessary precondition to the Board‘s determination in this case. There is no reason to think that a broad unit, in the absence of the Rule, would somehow be inappropriate. See Vanderbilt Univ., 218 N.L.R.B. 1076, 1078 (N.L.R.B. 1975) (noting the “strong congressional sentiment favoring broad unit determinations in the health care industry“); see also Cleveland Constr., Inc. v. NLRB, 44 F.3d 1010, 1013 (D.C.Cir. 1995) (“The Board need only select an appropriate unit, not the most appropriate unit.“) (emphasis added).
But assuming arguendo the Rule‘s validity is necessarily at issue, we see zero merit to petitioner‘s argument. All the
Indeed, even if the Board did consider past and present union organization in formulating the Health Care Rule, nothing in the National Labor Relations Act precludes such consideration entirely. Section 9(c)(5) requires only that the extent of organization not be thе controlling factor; consideration of that factor among others is entirely lawful. NLRB v. Metro. Life Ins. Co., 380 U.S. 438, 441-42, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965); Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1191 (D.C.Cir. 2000).
To be sure, if a union petitions for an election in one of the eight acceptable units, it will likely be granted, but that hardly suggests that extent of organization is a controlling factor because the Board has indicated that other considerations support the appropriateness of any of thеse eight units. Moreover, a protesting employer may always seek to show “extraordinary circumstances,” requiring a departure from the Rule‘s advance determination of appropriate units.4
B. Appropriateness of the Unit
Assuming the validity of the Rule, the Hospital maintains that the Board violated it in this proceeding because the Union was required to show and the Board was required to find extraordinary cirсumstances to join together a number of the Rule‘s designated units, particularly the professionals with the non-professionals. According to petitioner, even if the professionals voted to be part of the overall unit, that by itself did not excuse the Board‘s failure to find extraordinary circumstances. This argument is based on an obvious misreading of the Rule. Recall it states, “Except in extraordinary circumstances and in circumstances in which there are existing non-conforming units, the following shall be appropriate units, and the only appropriate units, ... except that, if sought by labor organizations, various combinations of units may also be appropriate.”
The Hospital‘s fall-back argument—which did, at first reading, seem more troublesome—is that even if the units “may” be combined under the Rule, that does not mean they shall be combined without the normal showing of a shared community of interest. See NLRB v. Action Auto., Inc., 469 U.S. 490, 494, 105 S.Ct. 984, 83 L.Ed.2d 986 (1985); see also United Operations, Inc., 338 N.L.R.B. 123, 123 (N.L.R.B. 2002) (listing the factors considered in a standard community-of-interest analysis). The Hospital points out
But the flaw in this argument is that the Hospital never put the issue in play; it never challenged the combined unit‘s community of interest at the initial representation hearing. The Hospital disputed the status of several nurses and presented its arguments relating to the legality and interpretation of the Rule, but despite invitation by both the hearing officer and the Union‘s counsel, it never questioned community of interest (probably because the argument was an obvious loser). A number of subordinate questions are often litigated in representation cases—such as personnel practices, supervision, common tasks, working interrelationship, etc.—that together point to a community of interest or the lack thereof. But it is hardly to be expected that a hearing officer would engage in a self-directed inquiry into the myriad of such questions in the absence of an employer‘s claim that a proposed unit lacked a community of interest.
Interestingly, there is no Board (or court) decision cited by the Boаrd‘s counsel, nor one that we could find, that addresses this precise point. Theoretically, we suppose under SEC v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947), we could remand to the Board to explicitly address this issue. But in this unusual instance we will not, because we think the proposition—that the employer must challenge a proposed unit on community-of-interest grounds before the Board is required to rule on the issue—is so pаinfully obvious that a remand is unnecessary. We therefore conclude that the Hospital waived any subsequent challenge based on the supposed lack of community of interest by not raising it before the hearing officer.
C. Procedural Challenges to the Certification
Petitioner raises three procedural objections to the Board‘s underlying proceedings, but all are marked more by imagination than substance. First, the Hosрital makes the extraordinary claim that the Board‘s Certification Order was unlawful because it was issued only four business days after our order vacating and remanding in light of New Process Steel. It is argued that, given the complexity of the case, the Board must have either de facto reopened the case prior to remand or else given only superficial consideration to the Hospital‘s arguments.
To dispose оf this rather silly argument, it is hardly necessary to rely on the pre-
sumption of regularity that agency pro
Secоnd—and this one is also a doozy—petitioner claims that the Certification Order was improper because three Representation-Management (“RM“) Petitions were pending at the time it was issued. But the RM petitions were obviously a gimmick that the Board could properly ignore in determining whether to certify the election. RM petitions (election petitions filed by an employеr) are permitted only when an employer claims a union no longer has majority support, or in response to a union‘s demand for recognition. See
Lastly, petitioner claims that the Board abused its discretion by permitting the General Counsel to amend the complaint—to allege that petitioner had again
refused the Union‘s bargaining demand—
*
*
*
As we noted at the outset, the Hospital unleashed a blizzard of arguments to challenge the Board‘s unfair-labor-practice orders. It might be appropriate to suggest that in appellate argument, the proverbial rifle is preferable to a machine gun—but that would assume petitiоner had at least a few good arguments; it did not. In truth, it appears to us that all the Hospital sought was the inevitable delay that review of Board orders affords. This is regrettable.
Accordingly, the petitions for review are denied, and the Board‘s cross-applications for enforcement are granted.
So ordered.