Temple Univ. Hosp., Inc. v. Nat'l Labor Relations Bd.

• Decision Date: 08 July 2022
• Docket Number: 21-1111,C/w 21-1124
• Citation: 39 F.4th 743
• Parties: 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

39 F.4th 743

TEMPLE UNIVERSITY HOSPITAL, INC., Petitioner/Cross-Respondent

v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-PetitionerTemple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals, Intervenor

No. 21-1111

C/w 21-1124

United States Court of Appeals, District of Columbia Circuit.

Argued February 15, 2022

Decided July 8, 2022

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 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.

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 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 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, 111 S.Ct. 1539, 113 L.Ed.2d 675 (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, 79 S.Ct. 773, 3 L.Ed.2d 775 (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 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.

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.

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, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) ). We remanded the case for further proceedings.

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