UPMC and its Subsidiary, UPMC Presbyterian Shadyside, Single Employer, d/b/a UPMC Presbyterian Hospi, (2017)

Docket Number:06-CA-102465

NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

UPMC and its subsidiary, UPMC Presbyterian Shadyside, single employer, d/b/a UPMC Presbyterian Hospital and d/b/a UPMC Shadyside Hospital and SEIU Healthcare Pennsylvania CTW, CLC. Cases 06–CA–102465, 06–CA– 102494, 06–CA–102516, 06–CA–102518, 06–CA– 102525, 06–CA–102534, 06–CA–102540, 06–CA– 102542, 06–CA–102544, 06–CA–102555, 06–CA– 102559, 06–CA–104090, 06–CA–104104, 06–CA– 106636, 06–CA–107127, 06–CA–107431, 06–CA– 107532, 06–CA–107896, 06–CA–108547, 06–CA– 111578, and 06–CA–115826

December 11, 2017



This dispute involves 22 different cases in which the General Counsel alleges that Respondent UPMC (UPMC) is a single employer together with its subsidiary, Respondent UPMC Presbyterian Shadyside (Presbyterian Shadyside). All of the disputed unfair labor practices were alleged to have been committed by Presbyterian Shadyside, and UPMC’s disputed status as an alleged single employer would require extensive litigation, possibly taking many years to resolve, with no certainty as to outcome, and substantially delaying any final Board adjudication of the numerous alleged violations. However, there was a potentially promising development: UPMC agreed to resolve the disputed single-employer issue by offering to guarantee the performance of any remedies ultimately awarded against Presbyterian Shadyside. Administrative Law Judge Mark Carissimi accepted the offer, with modifications, over the objections of the General Counsel and Charging Party, both of whom filed exceptions to the judge’s decision in this regard, which are before us now in the instant proceeding.1

1 The judge issued the attached supplemental decision on July 31, 2015. The General Counsel and Charging Party each filed exceptions and a supporting brief, the Respondent filed an answering brief to the General Counsel’s exceptions, and the General Counsel filed a reply brief. The Respondent filed a limited cross-exception and a supporting brief, and the General Counsel filed an answering brief. After considering the supplemental decision and the record in light of the exceptions, cross-exception, and briefs, we have decided, for the reasons stated in this opinion, to grant the Respondent’s limited crossexception, to modify the judge’s recommended Order accordingly, and to affirm the judge’s rulings, findings, and conclusions in all other respects.

In the interim, a divided Board, in United States Postal Service, 364 NLRB No. 116 (2016) (Postal Service), decided that judges are no longer permitted to accept a respondent’s offered settlement terms, over the objection of the General Counsel and charging party or parties, unless the offer constitutes “a full remedy for all of the violations alleged in the complaint.” Id., slip op. at 3.

We find, as did the judge, that UPMC’s offer to act as guarantor of any remedies ultimately awarded against Presbyterian Shadyside effectuates the purposes of the National Labor Relations Act (NLRA or Act). Therefore, we find that the judge properly accepted the proffered terms in settlement of the single-employer allegation against UPMC.

Furthermore, we overrule Postal Service, and we agree with the dissenting views of Chairman (then-Member) Miscimarra in that case, who pointed out that Postal Service imposed an unacceptable constraint on the Board itself, which retained the right under prior law to review the reasonableness of any respondent’s offered settlement terms that were accepted by the judge. We believe the “full remedy” standard adopted by the Board in Postal Service was an ill-advised and counterproductive departure from longstanding precedent. As illustrated by the instant case, adhering to the Postal Service standard would predictably cause incalculable delay in resolving the alleged violations, while potentially jeopardizing the prospect of obtaining any remedy against UPMC. Today, we return to the Board’s prior practice of analyzing all settlement agreements, including consent settlement agreements, under the “reasonableness” standard set forth in Independent Stave, 287 NLRB 740 (1987).2


The Amended Consolidated Complaint (Complaint) against UPMC and its subsidiary Presbyterian Shadyside issued in this matter on January 9, 2014, consolidating unfair labor practice allegations in 22 separate cases. In each of these 22 cases, Presbyterian Shadyside is alleged to be the culpable party. The Complaint’s sole allegation against UPMC is that UPMC and Presbyterian Shadyside “are a single integrated business and a single employer within the meaning of the Act.”

The hearing before Judge Carissimi began on February 12, 2014. Litigation of the single-employer allegation

2 The Board has used various terms to describe settlement terms to which the respondent has agreed but the General Counsel and charging party or parties have not, including “consent order” and “unilateral settlement by consent order.” See, e.g., Lin Television Corp., 362 NLRB No. 197 (2015) (consent order); Local 872, 28-CB-118809, 2015 WL 153954 (Jan. 12, 2015) (unilateral settlement by consent order). We will refer to these as consent settlement agreements.

stalled over disputes regarding subpoenas issued by the General Counsel seeking documents allegedly relevant to that allegation. UPMC and Presbyterian Shadyside (collectively, the Respondents) petitioned to revoke the subpoenas. The judge denied the petitions in substantial part and ordered the Respondents to produce the subpoenaed documents. The Respondents refused to comply with the judge’s order, and the General Counsel filed an application to enforce the subpoenas in federal district court. The court granted the General Counsel’s application, and the Respondents appealed the district court’s order to the Court of Appeals for the Third Circuit, where it remains pending.

After the General Counsel filed his application to enforce the subpoenas in federal district court, Judge Carissimi severed the single-employer allegation from the unfair labor practice allegations so as not “to delay [his] resolution of the substantive unfair labor practice issues in the complaint.” The parties then proceeded to litigate the substantive unfair labor practice allegations against Presbyterian Shadyside over the course of a 19-day hearing, during which (according to the judge) “no evidence [was] presented . . . that UPMC independently committed any unfair labor practices.” On November 14, 2014, the judge issued a 120-page decision, in which he found that Presbyterian Shadyside committed multiple violations of the Act. Exceptions to the judge’s decision are pending before the Board. The single-employer allegation remained unlitigated and undecided.

On June 14, 2015, UPMC filed a Partial Motion to Dismiss, in which UPMC moved to dismiss the allegation that it constitutes a single employer with Presbyterian Shadyside. At the same time, UPMC offered to “guarantee the performance by Presbyterian Shadyside of any remedial aspects of the Administrative Law Judge’s Decision and Order [that] survive the exceptions and appeal process.” In its Partial Motion to Dismiss, UPMC further stated that it “would be responsible for any remedy along with Presbyterian Shadyside.”

In a supplemental decision issued July 31, 2015 (Supplemental Decision), Judge Carissimi accepted UPMC’s offer and granted the Partial Motion to Dismiss, reasoning as follows:

UPMC is now proposing that the single employer allegation in the complaint be resolved on the basis that it guarantees compliance with any remedies the Board may issue regarding any unfair labor practices committed by Presbyterian Shadyside in the original decision in this case that is presently pending before the Board. It is important to note that the complaint does not allege that UPMC independently committed any of the unfair labor practices alleged in the complaint. In addition,


there was no evidence presented at the trial that UPMC independently committed any unfair labor practices. Thus, any liability that UPCM [sic] would have for any of the unfair labor practices committed by Presbyterian Shadyside would be solely dependent upon a finding that it constitutes a single employer with Presbyterian Shadyside.

In my view, accepting UPMC’s offer to serve as a guarantor and ensure that Presbyterian Shadyside complies with any remedies provided for in a Board order is an appropriate way to resolve the single employer allegation. In accepting this offer, I will dismiss the allegation in the complaint that UPMC and Presbyterian Shadyside constitute a single employer, but I will retain UPMC as a party to the case in order to ensure that there is a mechanism to enforce, if necessary, its willingness to serve as a guarantor for any remedies ordered by the Board.

. . . . . . . . .

Accepting UPMC’s offer to serve as a guarantor of any remedy that the Board may ultimately order against Presbyterian Shadyside and providing UPMC do so pursuant to an order, in my view, is as effective a remedy as I would provide if I were to find UPMC and Presbyterian Shadyside to be a single employer and thus jointly and severally liable for the unfair labor practices I have found were committed by Presbyterian Shadyside.

Having accepted UPMC’s offer, the judge dismissed the single-employer allegation.

The General Counsel and Charging Party filed exceptions to the Supplemental Decision, arguing that the judge erred by finding that UPMC’s guarantee is as effective as the remedy that would result from a singleemployer finding...

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