California Pacific Medical Center v. N.L.R.B., s. 93-71039
| Citation | 87 F.3d 304 |
| Decision Date | 19 June 1996 |
| Docket Number | Nos. 93-71039,94-70009,s. 93-71039 |
| Parties | 152 L.R.R.M. (BNA) 2593, 133 Lab.Cas. P 11,824, 96 Cal. Daily Op. Serv. 4384, 96 Daily Journal D.A.R. 7102 CALIFORNIA PACIFIC MEDICAL CENTER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CALIFORNIA PACIFIC MEDICAL CENTER, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerome B. Falk, Jr., Howard, Rice, Nemerovski, Canady, Robertson, Falk & Rabkin, San Francisco, California, for petitioner-respondent.
Richard A. Cohen, National Labor Relations Board, Washington, DC, for respondent-petitioner.
On Application for Enforcement of an Order of the National Labor Relations Board.
Before: FLETCHER, POOLE, and O'SCANNLAIN, Circuit Judges.
California Pacific Medical Center ("CPMC") petitions for review of the final Decision and Order of the National Labor Relations Board ("the Board") which held that CPMC violated sections 8(a)(1) and (5) of the National Labor Relation Act. CPMC had refused to recognize the California Nurses Association ("CNA") as the bargaining representative for a bargaining unit comprised of all registered nurses at Children's Hospital of San Francisco ("Children's"), and unilaterally altered the employment conditions of the Children's nurses after Children's merged with Pacific Presbyterian Center ("Presbyterian") to form CPMC. We affirm the Board's final Decision and Order.
On June 16, 1991, Children's and Presbyterian merged to form CPMC. The two hospitals are approximately one mile apart. After the merger, Children's became CPMC's "California Campus" and Presbyterian became CPMC's "Pacific Campus." To improve efficiency, CPMC took steps to integrate the two hospitals' operations by eliminating duplications in staff, equipment, and services.
Before the merger, six unions represented the employees at Children's and Presbyterian. CPMC decided to recognize only those unions which represented a majority of the employees in the combined units. Under this framework, CPMC recognized five of the unions, 1 but refused to recognize CNA. At the time of the merger, CNA represented 589 nurses at Children's, but no union represented the 838 nurses at Presbyterian. On the day of the merger, CPMC withdrew recognition from CNA, despite the fact that CNA had represented the nurses at Children's since 1947.
The next day, CPMC petitioned the Board for an election to allow the 1,427 nurses to decide whether they wanted representation, and invited CNA to assist with the election. Instead, CNA filed an unfair labor practices charge with the Board which precluded the election. While awaiting the Board's response, CPMC unilaterally gave the former Children's nurses a substantial pay raise and made other changes in their terms of employment.
Eight months after the merger, pursuant to section 10(j) of the National Labor Relations Act, the Board petitioned the U.S. District Court for Northern California for a preliminary injunction to restore the pre-merger status quo. Noting the unilateral withdrawal of recognition and four decades of representation, the district court granted the requested injunction, pending the Board's final determination. Miller ex rel. NLRB v. California Pac. Medical Ctr., 788 F.Supp. 1112, 1116 (N.D.Cal.1992). Upon CPMC's motion, we stayed, pending appeal, the order to reinstate the pre-merger employment conditions, but left standing the order to recognize CNA.
On appeal, we vacated the preliminary injunction, holding that the District Court had applied the wrong legal standard in evaluating whether to grant a preliminary injunction. Miller ex rel. NLRB v. California Pac. Medical Ctr., 991 F.2d 536, 542 (9th Cir.1993).
Subsequently, we granted the Board's Petition for Rehearing En Banc. A majority of the en banc court reached the same result as had the panel, finding that the district court had applied the wrong standard in granting the preliminary injunction. It did not remand for application of the proper standard, but rather vacated the district court's opinion because the district court had lost jurisdiction since the NLRB had in the interim issued its final order. Miller ex rel. NLRB v. California Pac. Medical Ctr., 19 F.3d 449, 456 (9th Cir.1994) (en banc). It is the Board's final order that we now review.
During the pendency of the preliminary injunction appeal, an Administrative Law Judge ("the ALJ") heard the unfair labor practice charges. On April 6, 1993, the ALJ issued a Decision and Order ruling that CPMC's unilateral decisions to withdraw recognition from CNA and to alter the terms of the nurse's employment violated sections 8(a)(1) and (5) of the National Labor Relations Act. 2
The ALJ made several findings indicating that CPMC had taken steps toward integrating its California and Pacific campuses. CPMC immediately centralized its management and administrative functions for the two hospitals and implemented common labor practices. CPMC took some steps toward unifying the two nursing departments: it centralized the upper levels of management; it centralized hiring and training; it distributed identical clinical and administrative manuals; it employed numerous clinical nurse specialists at both campuses; it created a voluntary cross-training program to allow any registered nurse to change campuses; and 100 float pool nurses were available on both campuses.
However, the ALJ also made several findings indicating that the nurses on the two campuses remained functionally separate. In the two months immediately after the merger, there was "almost no interchange" of nurses between the campuses. The nurses continued to use the parking lots, cafeterias, and pharmacies on their own campuses. The merger did not affect the nurses' job titles or responsibilities. The two layers of the chain-of-command immediately above the nurses--unit supervisors and nurse managers--did not have cross-campus responsibilities. In short, the merger had few day-to-day effects on the nurses.
The ALJ began his legal analysis with the single facility presumption, under which a single, geographically isolated facility operated by an employer which also operates other facilities is presumably the proper bargaining unit. The ALJ held that there are two ways to rebut this presumption. First, a party may demonstrate "circumstances that militate against its appropriateness, including an increased risk of work disruption...." Manor Healthcare Corp., 285 NLRB 224, 226, 1987 WL 89813 (1987). Second, a party may demonstrate other countervailing factors, such as geographic proximity, employee interchange, functional integration, administrative centralization, and common supervision. Bargaining history may also be a factor. West Jersey Health System, 293 NLRB 749, 751, 1989 WL 223929 (1989).
The ALJ then ruled that CPMC failed to rebut the single facility presumption. The ALJ rejected a Manor Healthcare rebuttal because CPMC offered no evidence of a risk of work disruptions. The ALJ also rejected a West Jersey rebuttal because CNA had a four-decade bargaining history and because of the lack of interchange between the nurses of the two campuses.
Accordingly, the ALJ held that CPMC's withdrawal of recognition from CNA and its unilateral changes in the nurses' conditions of employment violated the National Labor Relations Act. As a remedy, the ALJ recommended that the Board order CPMC to allow CNA to choose which unilateral changes to keep and which to reject. On September 30, 1993, the Board issued a final Decision and Order affirming the ALJ's findings and conclusions and adopting his recommended Order. See Children's Hospital, 312 NLRB No. 138, 1993 WL 398480 (1993). CPMC appealed.
The Board had jurisdiction over the unfair labor practices alleged by CNA against CPMC under section 10(a) of the National Labor Relations Act, 29 U.S.C. 160(a). We have jurisdiction over the Board's final Decision and Order under section 10(f) of the Act, 29 U.S.C. 160(f).
Courts of appeals may overturn Board decisions only if the Board's findings of fact are not supported by substantial evidence, or if the Board has incorrectly applied the law. NLRB v. General Truck Drivers, Local No. 315, 20 F.3d 1017, 1021 (9th Cir.1994), cert. denied, 513 U.S. 946, 115 S.Ct. 355, 130 L.Ed.2d 310 (1994). The substantial evidence test requires a case-by-case analysis and a review of the whole record. Id.
In addition, there is a substantial overlay of deference to the Board. Courts of appeals may overturn the Board's interpretations of the National Labor Relations Act only if they are not "reasonably defensible." Id. (quoting NLRB v. United Union of Roofers, Waterproofers & Allied Workers, Local 81, 915 F.2d 508, 510 (9th Cir.1990)). This is because "[t]he responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." NLRB v. Weingarten, Inc., 420 U.S. 251, 266, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975).
The determination of appropriate bargaining units is uniquely the Board's function--we overturn only an "abuse of discretion." NLRB v. HMO Int'l/Cal. Medical Health Plan, Inc., 678 F.2d 806, 809 (9th Cir.1982) (Kennedy, J.). See NLRB v. Action Automotive, Inc., 469 U.S. 490, 497, 105 S.Ct. 984, 989, 83 L.Ed.2d 986 (1984) (); South Prairie Constr. Co. v. Operating Eng'rs Local 627, 425 U.S. 800, 805, 96 S.Ct. 1842, 1845, 48 L.Ed.2d 382 (1976) (). The Board need only select an appropriate unit, not the most appropriate unit. American Hosp. Ass'n v. NLRB, 499 U.S. 606, 610, 111 S.Ct. 1539, 1542, 113 L.Ed.2d 675 (1991).
Courts of appeals may overturn the Board's remedial orders only for a "clear abuse of...
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