National Labor Relations Board v. Catherine McAuley Health Center

GUY, Circuit Judge,

concurring.

Although I concur in the result reached by the court, I write separately to convey my view that even if we found the single facility presumption applicable in this instance, the Catherine McAuley Health Center (CMHC) garnered sufficient rebuttal evidence to overcome the presumption. As the court notes, among factors pertinent to rebuttal of the single facility presumption are: the degree to which there is autonomy of the individual facility, employee interchange among facilities, bargaining history in a different unit, geographic proximity of the facilities, the presence of a union seeking to represent the employees in a larger unit, functional integration of operations, and centralization of management, particularly regarding personnel and labor relation matters. Presbyterian/St. Lukes Medical Center v. NLRB, 653 F.2d 450, 454 (10th Cir.1981). See also Meijer, Inc. *349 v. NLRB, 564 F.2d 737, 740 (6th Cir.1977). I would find rebuttal in this case based on the combination of geographic proximity of the facilities, employee interchange among facilities, and functional integration of operations and centralization of management, vis-a-vis, personnel and labor relations matters.

The geographic proximity of the Mercy-wood facility to the rest of the McAuley campus needs little discussion except to note that the AU and Board expressly gave this factor little weight in view of their perceived absence of employee interchange following the relocation. On the issue of employee interchange, however, CMHC demonstrated that subsequent to the relocation of Mercywood, it employed approximately 2,700 employees, of which 400 were service and maintenance employees. Although the Board estimated that somewhere between 48 and 98 of the service and maintenance employees work in the Mercywood building, only approximately 50 of the former bargaining unit employees continue to work there. Although neither the Board nor CMHC offered a concrete breakdown, approximately 48 former bargaining unit employees (cooks, groundskeepers, and maintenance employees) have been integrated either into the CMHC campus workforce or the centralized engineering department. The AU explicitly acknowledged these and other post-Mercywood relocation changes, including the move of the partial hospitalization program to the new Mercywood facility from an off-campus location and the attainment of anticipated reductions in operating costs, improved efficiency, and centralized employee management. I would find that the transfer and integration of nearly fifty percent of the bargaining unit employees into centralized campus departments constitutes more than the mere administrative change they were characterized as by the AU. Rather, the transfer and integration indicate that employee interchange did occur in tandem with the Mercywood relocation.

Finally, as the court notes, the nature and content of the Mercywood service and maintenance workers’ jobs, including their management, wages, and benefits are substantially the same as that of CMHC employees in the other campus buildings. Moreover, employment conditions such as grievance procedures and counseling services are available to all CMHC employees. CMHC maintains a highly integrated management structure and centralized labor policies, including common hiring procedures, work rules, disciplinary policies, and labor relations.

In my view, the AU and Board erred in finding that CMHC did not succeed in rebutting the single facility presumption because that finding was premised on a finding of a lack of employee interchange that is not supported by substantial evidence. I recognize that CMHC’s case for rebuttal is not based on a demonstration that every factor considered dictated rebuttal. The list of factors pertinent to rebuttal, however, is not exclusive. See Presbyterian/St. Lukes Medical Center, 653 F.2d 450, 454. On balance, therefore, considering the geographic proximity of the facilities, the extent of employee interchange, and the extent of integrated and centralized management governing work conditions and other labor issues, I would find that CMHC successfully rebutted the single facility, presumption.