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

National Labor Relations Board - Board Decisions

Dec 11, 2017

365 NLRB No. 153 (N.L.R.B. 2017)

365 NLRB No. 153
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive 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 Pres-
byterian 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
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE,
MCFERRAN, KAPLAN, AND EMANUEL
This dispute involves 22 different cases in which the
General Counsel alleges that Respondent UPMC
(UPMC) is a single employer together with its subsidi-
ary, Respondent UPMC Presbyterian Shadyside (Presby-
terian Shadyside). All of the disputed unfair labor prac-
tices were alleged to have been committed by Presbyteri-
an Shadyside, and UPMC’s disputed status as an alleged
single employer would require extensive litigation, pos-
sibly taking many years to resolve, with no certainty as
to outcome, and substantially delaying any final Board
adjudication of the numerous alleged violations. How-
ever, 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 objec-
tions 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 proceed-
ing.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 consid-
ering the supplemental decision and the record in light of the excep-
tions, cross-exception, and briefs, we have decided, for the reasons
stated in this opinion, to grant the Respondent’s limited cross-
exception, 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). There-
fore, we find that the judge properly accepted the prof-
fered terms in settlement of the single-employer allega-
tion 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 Ser-
vice imposed an unacceptable constraint on the Board
itself, which retained the right under prior law to review
the reasonableness of any respondent’s offered settle-
ment terms that were accepted by the judge. We believe
the “full remedy” standard adopted by the Board in Post-
al Service was an ill-advised and counterproductive de-
parture 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. To-
day, 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
Background
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
stalled over disputes regarding subpoenas issued by the
General Counsel seeking documents allegedly relevant to
that allegation. UPMC and Presbyterian Shadyside (col-
lectively, the Respondents) petitioned to revoke the sub-
poenas. 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 applica-
tion 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 en-
force the subpoenas in federal district court, Judge Caris-
simi 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 hear-
ing, during which (according to the judge) “no evidence
[was] presented . . . that UPMC independently commit-
ted any unfair labor practices.” On November 14, 2014,
the judge issued a 120-page decision, in which he found
that Presbyterian Shadyside committed multiple viola-
tions of the Act. Exceptions to the judge’s decision are
pending before the Board. The single-employer allega-
tion remained unlitigated and undecided.
On June 14, 2015, UPMC filed a Partial Motion to
Dismiss, in which UPMC moved to dismiss the allega-
tion that it constitutes a single employer with Presbyteri-
an 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 reme-
dy along with Presbyterian Shadyside.”
In a supplemental decision issued July 31, 2015 (Sup-
plemental Decision), Judge Carissimi accepted UPMC’s
offer and granted the Partial Motion to Dismiss, reason-
ing as follows:
UPMC is now proposing that the single employer alle-
gation in the complaint be resolved on the basis that it
guarantees compliance with any remedies the Board
may issue regarding any unfair labor practices commit-
ted 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 com-
plies with any remedies provided for in a Board order is
an appropriate way to resolve the single employer alle-
gation. In accepting this offer, I will dismiss the allega-
tion 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 will-
ingness to serve as a guarantor for any remedies or-
dered 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 rem-
edy 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 excep-
tions to the Supplemental Decision, arguing that the
judge erred by finding that UPMC’s guarantee is as ef-
fective as the remedy that would result from a single-
employer finding. Specifically, the General Counsel
argues that acceptance of UPMC’s guarantee deprives
the General Counsel of a finding that UPMC is jointly
and severally liable and, as such, directly liable for the
unfair labor practices found in this proceeding.3
UPMC filed a limited exception to the Supplemental
Decision, objecting to the wording of the judge’s rec-
ommended Order. The Supplemental Decision’s rec-
ommended Order binds UPMC’s “officers, agents, suc-
cessors, and assigns” in addition to UPMC. UPMC ar-
gues that the Order’s reference to “officers, agents, suc-

3 The General Counsel and the Union also contend that by accepting
UPMC’s offer, the judge improperly infringed on the General Coun-
sel’s prosecutorial discretion. The Union raised the same argument to
the judge, who rejected it and explained why. For the reasons stated by
the judge, we reject the General Counsel’s and Union’s contention.
UPMC 3
cessors, and assigns” exceeds “the parameters of
UPMC’s guarantor proposal,” and UPMC requests that
the Order be modified to state only that UPMC shall act
as a guarantor.
Discussion
A. The Board’s Longstanding Policy Has Been to Accept
Settlements That Are Reasonable.
Section 10(a) of the Act gives the Board “exclusive
power to deal with unfair labor practices and to prescribe
the appropriate remedy.” Borg-Warner Corp, 121
NLRB 1492, 1495 (1958); see generally Section 10(a) of
the Act (stating, in relevant part, that the Board’s power
to prevent unfair labor practices “shall not be affected by
any other means of adjustment or prevention that has
been or may be established by agreement, law, or other-
wise”). In exercising this power, “[t]he Board has long
had a policy of encouraging the peaceful, nonlitigious
resolution of disputes.” Independent Stave, above at 741;
see also The Wallace Corporation v. NLRB, 323 U.S.
248, 253–254 (1944) (“To prevent disputes like the one
here involved, the Board has from the very beginning
encouraged compromises and settlements.”).
This policy has been pursued with great success. For
example, in fiscal year 2016, 93 percent of meritorious
unfair labor practice cases were settled.4 This high rate
of settlement assists the Board in effectuating the policies
of the Act, both with regard to the settled cases them-
selves and by permitting the Agency to devote its limited
resources to more intractable disputes, often involving
nuanced or difficult issues of law. Nevertheless, settle-
ment is not an end in itself. Precisely because Section
10(a) of the Act grants the Board exclusive jurisdiction
to prevent unfair labor practices, the Board has the statu-
tory authority to reject settlement agreements “at odds
with the Act or the Board’s policies.” Borg-Warner
Corp., above at 1495.
With this statutory responsibility in mind, the Board
has traditionally considered a number of factors in re-
viewing settlement agreements to ensure they advance
the policies of the Act, including “the risks involved in
protracted litigation which may be lost in whole or in
part, the early restoration of industrial harmony by mak-
ing concessions, and the conservation of the Board’s
resources.” Farmers Co-operative Gin Assn., 168 NLRB
367, 367 (1967). “The determination of the appropriate

4 See National Labor Relations Board, FY 2016, Performance and
Accountability Report, at 16, available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
1674/15184%20NLRB%202016%20PAR_508.pdf. A “meritorious”
unfair labor practice case is one in which the regional director decides
to issue complaint.
remedy in unfair labor practice cases is a matter of ad-
ministrative judgment reached after the Board has bal-
anced all factors and equities in light of the policies of
the Act.” Roselle Shoe Corp., 135 NLRB 472, 475
(1962), enfd. 315 F.2d 41 (D.C. Cir. 1963). In determin-
ing whether to approve settlement agreements, “the dis-
cretion of the Board is recognized as broad.” Id. In ap-
plying its broad discretion, the Board has regularly ap-
proved settlement agreements that provide remedies less
than would be awarded if the General Counsel were to
prevail on every allegation of the complaint. For exam-
ple, in Roselle Shoe Corp., the Board weighed the al-
leged incompleteness of the proposed remedy—
providing only $12,000 of the $80,000 in backpay that
the union claimed was owed—against the “normal uncer-
tainties of litigation” and concluded that the settlement
was “appropriate and proper.” Id. at 474–478.
In Independent Stave, the Board reiterated its
longstanding, multi-factored approach to determining
whether a settlement agreement is appropriate. It did so
in part to correct what it viewed as a shift in Board law
that overemphasized one factor at the expense of others:
whether the proposed settlement “substantially reme-
died” all alleged violations. Independent Stave, above at
742. This shift was apparent in Clear Haven Nursing
Home, 236 NLRB 853 (1978), reconsideration denied
239 NLRB 1244 (1979) (Clear Haven). In Clear Haven,
the Board rejected, over a dissent, a proposed settlement
as inadequate on the basis that it provided for reinstate-
ment of strikers but without backpay. In Independent
Stave, the Board sided with the Clear Haven dissenters
and found that the majority in Clear Haven had “too nar-
row a focus” on whether the settlement provided a full
remedy. Independent Stave, above at 742. The Board
criticized this approach as based on the faulty presump-
tion that “the General Counsel would prevail on every
violation alleged in the complaint.” Id. (emphasis in
original). The Board emphasized that at the settlement
stage of litigation, the NLRB “is confronted with only
alleged violations of the Act.” Id. (emphasis in original).
In Independent Stave the Board made clear that the
“substantial remedy” factor was not to predominate over
other factors. Instead, the Board stated, it would “evalu-
ate the settlement in light of all factors present in the case
to determine whether it will effectuate the purposes and
policies of the Act to give effect to the settlement.” Id. at
743. Although the Board observed that it was “impossi-
ble to anticipate each and every factor which will have
relevance to [its] review” of proposed settlement terms,
id., it identified several nonexhaustive factors relevant to
making this determination:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
[I]n evaluating . . . settlements in order to assess wheth-
er the purposes and policies underlying the Act would
be effectuated by our approving the agreement, the
Board will examine all the surrounding circumstances
including, but not limited to, (1) whether the charging
party(ies), the respondent(s), and any of the individual
discriminatee(s) have agreed to be bound, and the posi-
tion taken by the General Counsel regarding the settle-
ment; (2) whether the settlement is reasonable in light
of the nature of the violations alleged, the risks inherent
in litigation, and the stage of the litigation; (3) whether
there has been any fraud, coercion, or duress by any of
the parties in reaching the settlement; and (4) whether
the respondent has engaged in a history of violations of
the Act or has breached previous settlement agreements
resolving unfair labor practice disputes.
Id. Applying these factors, the Board found that the settle-
ment in Independent Stave was “reasonable,” even though,
had the General Counsel been “fully successful” in litigating
the unfair labor practice allegations, “the Charging Parties
would have . . . been entitled to more backpay and the post-
ing of a Board notice to employees.” Id. at 743 fn. 17.
B. The Postal Service “Full Remedy” Standard Is Con-
trary to the Longstanding Board Policy of Approving All
Settlements That the Board Finds Reasonable.
For nearly 30 years, the Board evaluated the reasona-
bleness of all proposed settlement terms—including the
proposed terms of consent settlement agreements—under
the standard set forth in Independent Stave, above.5 In
Postal Service, above, a Board majority abruptly depart-
ed from this longstanding precedent, holding that “a pro-
posed [consent] order protects the public interest and
effectuates the purposes and policies of the Act only if it

5 See, e.g., Local 872, 28–CB–118809, 2015 WL 153954 (Jan. 12,
2015) (agreeing with the judge that the proposed “unilateral settlement
by consent order” met the requirements of Independent Stave); Heil
Environmental, 10–CA–114054 et al., 2014 WL 2812204 (June 20,
2014) (same); Postal Service, 20–CA–31171 (May 27, 2004) (approv-
ing under Independent Stave a unilateral settlement offer opposed by
the General Counsel and the charging party); Leprino Foods Co., 07–
CB–43599 (Jan. 24, 2003) (same); Caterpillar, Inc., 33–CA–10164
(May 13, 1996) (same); Propoco, Inc., d/b/a Professional Services, 2–
CA–27013 (June 26, 1995) (same); see also Lin Television Corp., 362
NLRB No. 197 (2015) (setting aside “consent order” as it did not meet
requirements of Independent Stave); Enclosure Suppliers, LLC, 09–
CA–046169, 2011 WL 2837659 (July 14, 2011) (same); Sea Jet Truck-
ing Corp., 327 NLRB 540, 550 (1999) (setting aside unilateral settle-
ment proposed by the respondent over the General Counsel's and charg-
ing party's objection as it did not satisfy Independent Stave require-
ments); Iron Workers Local 27 (Morrison-Knudson), 313 NLRB 215,
217 (1993) (same); Food Lion, Inc., 304 NLRB 602, 602 fn. 4 (1991)
(same). These cases demonstrate that the Board can adequately evalu-
ate the proposed terms of consent settlement agreements under Inde-
pendent Stave, and reject, where appropriate, settlements that do not
effectuate the purposes and policies of the Act.
provides a full remedy for all of the violations alleged in
the complaint.” Postal Service, 364 NLRB No. 116, slip
op. at 3. The Postal Service majority further stated: “In
evaluating the completeness of the remedy, we will ask
whether the proposed order includes all the relief that the
aggrieved party would receive under the Board’s estab-
lished remedial practices were the case successfully liti-
gated by the General Counsel to conclusion before the
Board.” Id.
We find that the Board majority in Postal Service
adopted an ill-advised standard less likely to effectuate
the purposes and policies of the Act than the Board’s
longstanding approach embodied in Independent Stave.
As the instant case illustrates, adhering to the Postal Ser-
vice standard would predictably cause incalculable delay
in resolving the alleged violations in this case, while po-
tentially jeopardizing the prospect of obtaining any rem-
edy against UPMC.
For several reasons, we overrule Postal Service and re-
turn to the reasonableness standard articulated in Inde-
pendent Stave when evaluating the terms of consent set-
tlement agreements.
First and foremost, we find that it advances the pur-
poses and policies of the Act to permit judges to accept
settlement terms proffered by a respondent—even though
the General Counsel and charging party or parties object
to those terms—if the judge determines that the settle-
ment is reasonable under Independent Stave, a determi-
nation that is subject to review by the Board. When a
respondent offers to resolve disputed allegations based
on terms that the judge and the Board deem reasonable
under the circumstances, there is no valid reason for the
Board to preclude such a resolution as a matter of law on
the sole basis that the proffered terms include a less-than-
full remedy, as Postal Service requires. Congress has
granted the Board “exclusive power to deal with unfair
labor practices and to prescribe the appropriate remedy.”
Borg-Warner Corp, above at 1495. To preclude the ear-
ly resolution of Board litigation, on reasonable terms,
simply because a party insists on a full remedy for all
unfair labor practice allegations undermines the Board’s
interest in “encouraging voluntary dispute resolution,
promoting industrial peace, conserving the resources of
the Board, and serving the public interest.” Independent
Stave, above at 743. Conversely, these purposes are ad-
vanced by permitting the acceptance of settlement terms
that are reasonable, notwithstanding opposition by the
General Counsel and charging parties.
Second, the Board’s acceptance of reasonable settle-
ment terms may well be in the best interest of parties
who object to a consent settlement agreement, especially
where those parties are unreasonably discounting the
UPMC 5
risks associated with litigation. As the Board stated in
Independent Stave:
At this stage of the litigation we are confronted only
with alleged violations of the Act. Even though the al-
legations in the complaint issued after the Region's in-
vestigation and determination that reasonable cause ex-
ists to believe the allegations occurred, a charging par-
ty's right to a [full] remedy can be enforced, upon the
authority of the Government, only after an adjudica-
tion. In addition, there are risks inherent in litigation.
For example, witnesses may be unavailable or uncoop-
erative; procedural delays may occur; the issues may be
complex or novel; supporting documentation may have
been destroyed or lost; and credibility resolutions may
have to be made by the administrative law judge. By
operating on a rigid requirement that the settlement
must mirror a full remedy, we would be ignoring the
realities of litigation.
Independent Stave, above at 742–743 (emphasis in original).
The Postal Service majority’s apparent belief that a “full
remedy” standard will lead to consistently better outcomes
for the General Counsel and charging parties than a “rea-
sonableness” standard rested on the faulty assumption that
the General Counsel is sure to prevail. Experience teaches
the contrary lesson. Litigation is never certain. It is never
certain that the General Counsel will prevail on any com-
plaint allegation, let alone all of them. The Act entrusts the
Board with the prevention of unfair labor practices, and the
Board should use its statutory authority to approve settle-
ment agreements that are reasonable, even over the opposi-
tion of the General Counsel and charging party.
Third, as noted previously, by refusing to approve less-
than-full-remedy consent settlement agreements that are
nonetheless reasonable, the majority opinion in Postal
Service tied the hands not only of administrative judges
but also of the Board itself. Again, it is the Board’s ad-
judicatory duty, not that of the prosecuting General
Counsel and certainly not that of the charging party, to
make the final determination that settlement terms are
reasonable. Congress entrusted the Board with the re-
sponsibility to apply the Act to the “complexities of in-
dustrial life,”6 and in carrying out its responsibility, the
Board should trust itself to do what is reasonable. It does
not effectuate the purposes of the Act to craft unaccepta-
ble restraints on the Board’s ability to make that final
judgment.

6 NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); see also
NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266–267 (1975) (“The
responsibility to adapt the Act to changing patterns of industrial life is
entrusted to the Board.”).
Fourth, reasonable settlement terms reached at an early
stage—even if the terms are less than complete—will
often leave parties in a better position than would result
from a Board adjudication, considering the substantial
burdens and time involved in Board proceedings. The
nature of Board litigation often entails substantial delay
before disputed unfair labor practice allegations are re-
solved. Our procedures require the filing of a charge that
is investigated by one of the Board’s Regional Offices,
which decides whether to issue a complaint, which is
followed by a hearing before an administrative law
judge, with posthearing briefing in most cases. After the
judge issues a decision, parties have the right to file ex-
ceptions with the Board, which typically are supported
by another round of briefs, and the Board renders a deci-
sion, which can be followed by court appeals. When the
Board has found a violation and has ordered backpay and
other remedial measures, there are additional compliance
proceedings handled by the Board’s Regional Offices,
which can result in additional hearings before adminis-
trative law judges, additional posthearing briefs, supple-
mental decisions by the judges, and further appeals to the
Board and the courts. In spite of everyone’s best efforts,
this lengthy litigation process consumes substantial time
and, too often, causes unacceptable delays before any
Board-ordered relief becomes available to the parties.7
Finally, we overrule Postal Service because it rests on
faulty premises. The majority in Postal Service incor-
rectly stated that by adopting a “full remedy” standard
for evaluating consent settlement agreements, the Board
was returning “to the standard originally adopted by the
Board” in Local 201, Electronic Workers (General Elec-
tric), 188 NLRB 855 (1971).8 In General Electric, con-
trary to the Board majority’s claim in Postal Service, the
Board did not “adopt[] the trial examiner’s recommenda-
tion to approve the proposed order on the ground that it
provided a full remedy for all the violations alleged in

7 Cases may involve years of Board litigation and dozens or even
hundreds of employee-claimants. For example, the dispute in CNN
America, Inc., 361 NLRB No. 47 (2014)—involving approximately 300
employee-claimants—required 82 days of hearings, more than 1,300
exhibits, more than 16,000 pages of transcript, and more than 10 years
of Board litigation. Furthermore, the recent decision by the Court of
Appeals for the District of Columbia Circuit, denying in part the
Board’s cross-application for enforcement of its order, leaves open the
possibility that litigation will continue before the Board on remand.
NLRB v. CNN America, Inc., 865 F.3d 740 (D.C. Cir. 2017). Another
case being pursued by the General Counsel involves consolidated
claims against McDonald's USA, LLC, and 31 other employer parties,
based on 61 unfair labor practice charges filed in six NLRB regions
alleging 181 unfair labor practices involving employees at 30 restaurant
locations. See, e.g., McDonald's USA, LLC, 363 NLRB No. 91 (2016).
Should it proceed all the way to finality, the McDonald’s litigation
could last for decades.
8 Postal Service, above, slip op. at 1.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
the complaint.” Postal Service, above, slip op. at 1–2
(emphasis added). Rather, the trial examiner recom-
mended approving a consent settlement agreement that
provided a full remedy, and the Board adopted the trial
examiner's recommendation. General Electric, above at
855. The Board did not say that it was adopting the rec-
ommendation “on the ground that” the proposed order
provided a full remedy. The Board did not say it would
only approve consent settlement agreements that provide
a full remedy. Nor can a “full remedy” standard be in-
ferred from the General Electric decision. Merely be-
cause the Board in General Electric approved a consent
settlement agreement that provided a full remedy, it does
not follow that it would have rejected a consent settle-
ment agreement that provided less than a full remedy.
As Chairman (then-Member) Miscimarra noted in his
Postal Service dissent, “a high jumper that clears the bar
by a foot would also clear it if he had jumped 6 inches
lower.”9 In short, the majority in Postal Service did not
return Board law “to the standard originally adopted by
the Board.” Id., slip op. at 1. Rather, the Postal Service
majority announced a brand-new “full remedy” standard
for consent settlement agreements.
Prior to Postal Service, the Board consistently applied
the Independent Stave standard to consent settlement
agreements.10 Indeed, Independent Stave itself demon-
strates that the Board intended to apply a “reasonable-
ness” standard to all types of voluntary dispute resolution
by settlement agreement, including when the proposed
terms are opposed by the charging party or parties and/or
the General Counsel. Under the first Independent Stave
factor, the Board asks “whether the charging party(ies),
the respondent(s), and any of the individual discrimi-
natee(s) have agreed to be bound,” and it also considers
“the position taken by the General Counsel regarding the
settlement.” Independent Stave, above at 743. Thus, the
Board in Independent Stave clearly anticipated that unan-
imous agreement is not required for a settlement agree-
ment to be approved. It is true that the Board in Inde-
pendent Stave noted that certain charging parties had
accepted the settlement, and the Board, in approving the
settlement, was therefore “honoring the parties’ agree-
ments” by eliminating risks the parties “have decided to
avoid.” Id.11 However, as the Board has tacitly recog-
nized by applying Independent Stave in evaluating con-
sent settlement agreements, the facts of that case do not

9 Postal Service, above, slip op. at 5 (Member Miscimarra, dissent-
ing).
10 See above fn. 5.
11 Contrary to Member Pearce’s assertion, we do not conveniently
omit Independent Stave’s language regarding “honoring the parties’
agreements.” Rather, we read it in context.
constitute a holding that the agreement of the charging
party or parties is prerequisite to acceptance of a pro-
posed settlement. Rather, the test is the reasonableness
of the proposed settlement under the circumstances, and
whether all or even any parties (besides the charged par-
ty) consent to the agreement is merely one among several
relevant factors the Board must consider in determining
whether the settlement is reasonable and should be ac-
cepted.
For all of the foregoing reasons, we overrule the
Board’s decision in Postal Service, above, we reject the
“full remedy” standard for evaluating consent settlement
agreements, and we return to applying the “reasonable-
ness” standard set forth in Independent Stave to evaluate
such agreements.
C. The “Guarantor” Status Offered by UPMC Is Rea-
sonable Under Independent Stave, and Accepting the
Offer Effectuates the Purposes and Policies of the Act.
When the Board announces a new standard, a thresh-
old question is whether the new standard may appropri-
ately be applied retroactively, or whether it should only
be applied in future cases. In this regard, “[t]he Board’s
usual practice is to apply new policies and standards ret-
roactively ‘to all pending cases in whatever stage.’” SNE
Enterprises, 344 NLRB 673, 673 (2005) (quoting Deluxe
Metal Furniture Co., 121 NLRB 995, 1006-1007
(1958)). Yet, the Supreme Court has indicated that “the
propriety of retroactive application is determined by bal-
ancing any ill effects of retroactivity against ‘the mis-
chief of producing a result which is contrary to a statuto-
ry design or to legal and equitable principles.’” Id.
(quoting Securities & Exchange Commission v. Chenery
Corp., 332 U.S. 194, 203 (1947)).
Applying the Supreme Court’s balancing test, we be-
lieve it is appropriate to apply the standard we announce
today retroactively to the instant case and to all other
pending cases. We do not believe retroactivity will pro-
duce any “ill effects.” Although the “reasonableness”
standard may result in the acceptance of reasonable set-
tlement terms that are somewhat less than what would
result if the General Counsel prevailed on every allega-
tion of the complaint after litigating the case to comple-
tion, this does not constitute a material disadvantage giv-
en the other considerations referenced above. As we
have explained, the General Counsel and charging parties
who reject settlement terms on the sole basis that they do
not represent a full remedy for all alleged violations still
stand to benefit from today’s decision, which again
makes it possible for parties to obtain a reasonable out-
come on terms that are available much more quickly than
would be the case if the parties were to await the conclu-
sion of litigation. And the certainty of that outcome also
UPMC 7
enables parties to avoid the risk that, after enduring the
costs and delays of litigation, the outcome (from the per-
spective of the General Counsel and charging parties)
may be no better than, or even worse than, the proffered
settlement terms they unreasonably opposed.
Moreover, failing to apply the new standard retroac-
tively would “produc[e] a result which is contrary to a
statutory design or to legal and equitable principles.”
SEC v. Chenery Corp., above. The Act grants the Board
“exclusive power to deal with unfair labor practices and
to prescribe the appropriate remedy,” Borg-Warner
Corp, above at 1495, and by returning to a “reasonable-
ness” standard to evaluate consent settlement agree-
ments, the Board resumes the full exercise of its exclu-
sive power by restoring to itself the discretion to approve
such agreements over the unreasonable opposition of the
General Counsel and charging party or parties. Moreo-
ver, the standard we return to today “encourage[s] volun-
tary dispute resolution, promot[es] industrial peace, con-
serv[es] the resources of the Board, and serv[es] the pub-
lic interest.” Independent Stave, above at 743. Accord-
ingly, we find that application of our new standard in this
and all pending cases will not work a “manifest injus-
tice.” SNE Enterprises, above. We proceed to do so
now.
In his underlying decision, the judge addressed every
allegation in this matter except for the lone allegation
against UPMC—i.e., that UPMC is a single employer
with Presbyterian Shadyside. Single-employer status
does not, standing alone, constitute an unfair labor prac-
tice. Indeed, the judge found “there was no evidence
presented at the trial that UPMC independently commit-
ted any unfair labor practices.” Rather, if the Board de-
termines that one entity (here, UPMC) is a single em-
ployer with a second entity (here, Presbyterian
Shadyside), this provides a backup party—or a potential
alternate party—that is responsible for providing what-
ever relief is ultimately ordered. In other words, when a
parent company is found to be a single employer with its
subsidiary, the parent company is liable for the subsidi-
ary’s unfair labor practices “to the same extent” as the
subsidiary. Flat Dog Productions, Inc., 347 NLRB
1180, 1182 (2006).
This outcome is effectively what UPMC is offering.
Without further litigation, UPMC agrees to render itself
liable to the same extent as Presbyterian Shadyside. In
its Partial Motion to Dismiss, UPMC offered to “guaran-
tee the performance by Presbyterian Shadyside of any
remedial aspects of the Decision and Order which sur-
vive the exceptions and the appeal process.” In its reply
to the General Counsel’s and Charging Party’s excep-
tions to the motion, UPMC again stated that it “guaran-
tees the performance by Presbyterian Shadyside of any
remedial aspects of the Administrative Law Judge’s De-
cision and Order which survive the exceptions and ap-
peal process. As such, UPMC would be responsible for
any remedy along with Presbyterian Shadyside.”
UPMC’s offer constitutes the type of consent settle-
ment agreement—an agreement opposed by the General
Counsel and Charging Party—that the Board in Postal
Service held must never be accepted by the judge unless
the proffered terms constitute “a full remedy for all of the
violations alleged in the complaint.”12 As stated above,
however, we overrule Postal Service. Having done so,
we instead evaluate the terms of the consent settlement
agreement under Independent Stave. Thus, the Board
examines all the surrounding circumstances to determine
whether the settlement is reasonable, which includes
evaluating the following factors:
(1) whether the charging party(ies), the respondent(s),
and any of the individual discriminatee(s) have agreed
to be bound, and the position taken by the General
Counsel regarding the settlement; (2) whether the set-
tlement is reasonable in light of the nature of the viola-
tions alleged, the risks inherent in litigation, and the
stage of the litigation; (3) whether there has been any
fraud, coercion, or duress by any of the parties in reach-
ing the settlement; and (4) whether the respondent has
engaged in a history of violations of the Act or has
breached previous settlement agreements resolving un-
fair labor practice disputes.
273 NLRB at 743.
The first Independent Stave factor is not conclusive:
UPMC has agreed to be bound by its proposed “guaran-
tor” status, but the General Counsel and Charging Party
Union oppose resolving the single-employer allegation
on this basis. The General Counsel’s opposition “is an
important consideration weighing against approval,” but
it is not determinative under Independent Stave. McKen-
zie-Willamette Medical Center, 361 NLRB No. 7, slip
op. at 2 (2014); see also Iron Workers Local 27 (Morri-
son-Knudson), 313 NLRB at 217 (stating “it is clear” that
the opposition of the General Counsel and the charging
party “is not the decisive factor to be weighed”); Sea Jet
Trucking Corp., 327 NLRB at 550 (same).
Independent Stave factors 3 and 4 favor approval of
UPMC’s proposed remedial guarantee: there are no alle-
gations of fraud, coercion, or duress, and there is no evi-
dence that UPMC has a history of violating the Act or

12 Postal Service, above, slip op. at 3.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
has breached previous settlement agreements resolving
unfair labor practice disputes.13
Finally, we find that the “reasonableness” factor—
factor 2—favors approving the settlement, and this is the
most important consideration when evaluating a consent
settlement agreement. For the reasons explained below,
we find UPMC’s proposed remedial guarantee is reason-
able in light of the nature of the violations alleged, the
risks inherent in litigation, and the stage of the litigation,
and we conclude that the General Counsel’s and Charg-
ing Party’s opposition to accepting UPMC’s offer is
outweighed by countervailing factors that warrant ac-
cepting the remedial guarantee and dismissing the single-
employer allegation.
First, as the judge correctly found, UPMC’s remedial
guarantee is as effective as a finding of single-employer
status. As noted above, when a parent company is found
to be a single employer with its subsidiary, the parent
company is liable for the subsidiary’s unfair labor prac-
tices to the same extent as the subsidiary. The practical
aim of the General Counsel’s single-employer allegation
in this matter, then, is to hold UPMC responsible for
Presbyterian Shadyside’s unfair labor practices along
with Presbyterian Shadyside. UPMC’s remedial guaran-
tee achieves that aim. UPMC has offered to “guarantee
the remediation of any violation” found in this case, add-
ing that “as a guarantor, UPMC is liable for Presbyterian
Shadyside’s compliance with any remedy ordered and to
the extent Presbyterian Shadyside fails to remediate any
unfair labor practices on its own, UPMC must take any
necessary action to ensure compliance” (emphasis add-
ed). In short—and in its own words—“UPMC would be
responsible for any remedy along with Presbyterian
Shadyside,” just as UPMC would be were single-
employer status established. Thus, the judge correctly
found that UPMC’s offer to guarantee Presbyterian
Shadyside’s performance of its remedial obligations pro-
vides a remedy “as effective as” a finding of single-
employer status.14

13 Although UPMC subsidiaries, including Presbyterian Shadyside,
have been found to violate the Act, this does not weigh against ac-
ceptance of UPMC’s guarantee. In that case, as here, there was no
allegation “that UPMC, as a separate entity, committed unfair labor
practices.” UPMC, 362 NLRB No. 191, slip op. at 1 fn. 2 (2015).
14 Having accepted UPMC’s remedial guarantee offer, the judge in
his Supplemental Decision ordered that “UPMC, its officers, agents,
successors, and assigns, shall be the guarantor of any remedies that the
Board may order in the original decision in this case.” UPMC has
excepted to the inclusion of the “officers, agents, successors, and as-
signs” language on the ground that it was not included in UPMC’s
offer. We grant the cross-exception on that basis.
The omission of this language does not render UPMC’s remedial
guarantee unacceptable under Independent Stave. UPMC’s offered
“guarantor” status remains reasonable and sufficient to resolve the
Second, UPMC’s remedial guarantee is reasonable in
light of the circumstance that Presbyterian Shadyside, not
UPMC, is the alleged wrongdoer here. In its exceptions,
the General Counsel argues that a single-employer find-
ing is necessary because it would render UPMC jointly
and severally liable with Presbyterian Shadyside. Joint
and several liability, the General Counsel argues, would
allow the General Counsel to hold UPMC primarily and
directly liable for any remedial failure, i.e., the General
Counsel could institute contempt proceedings directly
against UPMC for UPMC’s failure to comply with the
Board’s Order. The General Counsel’s insistence on
joint and several liability might carry more weight if the
General Counsel had alleged that UPMC had violated the
Act in any way. There was no such allegation, and a 19-
day hearing that resulted in a 120-page decision pro-

disputed single-employer allegation here, because the record reveals
that both UPMC and Presbyterian Shadyside are stable corporate enti-
ties with substantial assets. Moreover, we agree with counsel for the
General Counsel’s statement in the General Counsel’s Answering Brief
in Opposition to Respondent UPMC’s Exception that removal of the
language “would change nothing from a legal standpoint” (Opposition
p. 3). Under Supreme Court precedent and Federal Rule of Civil Pro-
cedure 65(d)(2)(b) and (c), our Order against UPMC is binding against
its officers, agents, successors, and assigns to the extent those parties
would be bound under the Federal Rules of Civil Procedure, regardless
of whether the Order specifically includes such language. In Regal
Knitwear v. NLRB, 324 U.S. 9 (1945), the Supreme Court addressed an
employer’s objection to the Board’s addition of “officers, agents, suc-
cessors and assigns” to its cease-and-desist order against the employer.
The Court called the controversy “abstract” because the employer
merely objected to the words of the order; the Board was “not attempt-
ing to reach or hold anyone in contempt by virtue of such orders,” and
no successor or assign appeared before the Court “complaining that
these words put him in jeopardy.” Id. at 15–16. The Court held that
contempt liability against a successor or assign does not hinge on the
inclusion of the words “successors or assigns” in the order itself, but
upon a “concrete set of facts” demonstrated at a “judicial hearing.” Id.
at 16. Thus, although Regal Knitwear indicates that a court has the
authority to make a Board order binding against a respondent’s officers,
agents, successors, and assigns, that is not the end of the analysis, at
least as to successors or assigns. “Rather, the court must [then] look to
the actual relationship between the persons enjoined and their ‘succes-
sors and assigns,’ and if the relationship qualifies [under Rule 65(d)],
third persons will be bound by the injunction whether or not the order
specifically refers to successors and assigns.” 11A Charles Alan
Wright, Arthur R. Miller, et al., Federal Practice & Procedure § 2956,
Westlaw (database updated Apr. 2017).
We further modify the judge’s recommended Order in one additional
respect. The judge stated that UPMC, as guarantor, “must ensure that
Respondent UPMC Presbyterian Shadyside takes all steps necessary to
comply with any remedies that may be contained in the Board’s Order,
including providing for any such remedies itself, if UPMC Presbyterian
Shadyside is unable to do so” (emphasis added). We shall substitute
the word “fails” for the italicized phrase to better reflect UPMC’s guar-
antee. See UPMC's Answering Brief in Opposition to Counsel for the
General Counsel's Exceptions to the Administrative Law Judge's Sup-
plemental Decision, p. 6 (“[T]o the extent Presbyterian Shadyside fails
to remediate any unfair labor practices on its own, UPMC must take
any necessary action to ensure compliance” (emphasis added).).
UPMC 9
duced no evidence that UPMC had independently com-
mitted a single unfair labor practice. Rather, all of the
violations found by the judge involved Presbyterian
Shadyside. Presbyterian Shadyside should be primarily
responsible to remedy its own violations of the Act, and
UPMC has reasonably offered to guarantee that Presby-
terian Shadyside will do just that.15
Third, UPMC’s remedial guarantee is reasonable in
light of the risks inherent in litigating single-employer
status and the stage of the litigation. Accepting UPMC’s
offer would remove the risk to the Charging Party Union
and the alleged discriminatees that UPMC would not be
found a single employer with Presbyterian Shadyside and
thus would not bear any responsibility for Presbyterian
Shadyside’s compliance with the Board’s ultimate order.
If the Board rejects UPMC’s offer, UPMC may or may
not be found jointly and severally liable for any unfair
labor practices committed by Presbyterian Shadyside. If
the Board accepts UPMC’s offer, UPMC will be respon-
sible for Presbyterian Shadyside’s performance of any
remedies the Board orders. Rejecting UPMC’s offer
runs the risk that UPMC will not have any liability for
Presbyterian Shadyside’s unfair labor practices.
Finally, accepting UPMC’s offer also greatly expedites
the resolution of this proceeding. Barring settlement
somewhere along the way, a long road stretches ahead
for litigating and deciding the single-employer allega-
tion. Since the subpoena enforcement dispute pending
before the Third Circuit concerns documents potentially
relevant to single-employer status, the parties must first
await the Third Circuit’s resolution of that dispute. As-
suming the Third Circuit upholds the district court’s de-
cision, UPMC will comply with the subpoena, and a
hearing on single-employer status will follow. Based on
his knowledge of the case, Judge Carissimi estimated
that such a hearing would take 4 or 5 days. As bad luck
would have it (although the judge might disagree with
that assessment), Judge Carissimi has retired, so another
judge—one unfamiliar with the case—would conduct
any further necessary hearings in this matter. See Sec-
tion 102.36 of the Board’s Rules and Regulations. This
new judge will then draft a decision explaining why
UPMC and Presbyterian Shadyside do or do not consti-
tute a single employer. Any party may then file excep-
tions to this decision with the Board. The Board would
then review the judge’s decision and the record in light
of the exceptions and the parties’ briefs and issue a deci-
sion in the fullness of time. The Board’s decision, of

15 As stated above, Judge Carissimi’s decision and recommended
order are pending before the Board on exceptions. The Board does not
prejudge the merits of this matter.
course, may not be the end of the matter, as a party might
appeal the Board’s determination to a federal court of
appeals. This process could take years, and the outcome
is anything but certain. Accepting UPMC’s remedial
guarantee offer would eliminate both the delay and the
uncertainty.
D. Response to the Dissents of Members Pearce
and McFerran
Our colleagues’ respective dissents present as long-
settled Board law a false dichotomy that could not possi-
bly have existed prior to the Board’s decision in Postal
Service little over a year ago. In particular, Member
McFerran incorrectly claims that “[u]ntil today, the
Board had two basic frameworks” for the evaluation of
settlement agreements: Independent Stave where the
settlement was a “true settlement,” and Postal Service for
consent settlement agreements. Not so. Postal Service
issued barely more than one year ago, and the cases cited
above in footnote 5 demonstrate that for three decades
prior to Postal Service, the Board evaluated consent set-
tlement agreements under Independent Stave. Indeed, by
including as a relevant factor the position of the parties
as to the settlement, Independent Stave itself clearly indi-
cates that it applies to settlements where the General
Counsel and/or the charging party objects. Above, we
discuss at length why Postal Service constituted an un-
warranted departure from precedent. It is no surprise that
such an ill-advised approach has not long been the policy
of the Board.
We may quickly dispense with a few additional objec-
tions raised by our dissenting colleagues. First, citing
UFCW, Local No. 1996 (Visiting Nurse Health System,
Inc.), 338 NLRB 1074, 1074 (2003), Member McFerran
asserts that “[a] change in the Board’s composition is not
a basis for revisiting an earlier decision.” The cited case
is inapposite: Visiting Nurse Health System concerned a
motion for reconsideration. In Visiting Nurse Health
System, the Board rejected the charging party’s argument
that a change in the Board’s composition constituted “ex-
traordinary circumstances” warranting reconsideration of
the prior Board’s decision in the same case. No such
argument has been made by the parties in the present
case, which is not before the Board on a motion for re-
consideration and therefore is not governed by the “ex-
traordinary circumstances” standard. See Sec. 102.48 of
the Board’s Rules. Furthermore, Member McFerran’s
assertion to the contrary notwithstanding, “[i]t is a fact of
life in NLRB lore” that the Board’s interpretation of the
Act will “invariably fluctuate with the changing compo-
sitions of the Board.” Epilepsy Foundation of Northeast
Ohio v. NLRB, 268 F.3d 1095, 1097 (D.C. Cir. 2001).
Congress created the Board with five members whose
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
terms are staggered so that a different member’s term
expires every year, and the Board in recent years has
exhibited no reluctance to modify well-established prin-
ciples involving many of the most fundamental aspects
of the Act. Our decision today reflects a reasoned evalu-
ation of the modification a previous Board majority made
in Postal Service. As explained above, and consistent
with the views expressed by one Board member in that
case,16 we believe the majority’s decision in Postal Ser-
vice improperly deviated from policies favoring the ap-
propriate settlement of disputed allegations. This is es-
pecially true given that under the preexisting standard,
set forth in Independent Stave, settlements approved by
regional directors or administrative law judges remain
subject to review by the Board. Therefore, we overrule
Postal Service for the reasons expressed above.
Second, contrary to our dissenting colleagues’ asser-
tions, the proper standard for assessing consent settle-
ment agreements is at issue in this matter. UPMC’s offer
to guarantee Presbyterian Shadyside’s compliance with
any remedies the Board may order shares the key charac-
teristics of a consent settlement agreement. Namely,
Respondent UPMC has offered to resolve the single-
employer allegation against it pursuant to terms that the
judge found acceptable over the objections of the Charg-
ing Party and the General Counsel. The evaluation of a
proffered settlement to which the General Counsel and
charging party object falls squarely within the purview of
Postal Service. Even though our dissenting colleagues
claim not to see how the standard for consent settlement
agreements might be at issue here, the General Counsel
and Charging Party see it plainly enough. In his brief on
exceptions to the judge’s decision to accept UPMC’s
guarantee, the General Counsel, writing before the
Board’s decision in Postal Service, argued that the guar-
antee did not meet the Board’s requirements for consent
settlement agreements as set forth in Independent Stave.
Furthermore, after the issuance of Postal Service by the
Board, the Charging Party wrote “to advise the Board of
a recent decision” that, in its view, supported its excep-
tions to the judge’s order. In its letter, the Charging Par-
ty highlighted the similarities between Postal Service and
the present matter, specifically noting that Postal Service
and the judge’s order “both involve an ALJ’s adoption of
an order incorporating a respondent’s settlement offer
over the objections of the charging party and the General
Counsel to dispose of complaint allegations in a manner
that did not fully remedy the violations alleged in the
complaint.”

16 Postal Service, 364 NLRB No. 116, slip op. at 4–8 (Member
Miscimarra, dissenting).
Third, Member McFerran argues that UPMC’s guaran-
tee “resolves nothing” because it is contingent on the
outcome of the case against Presbyterian Shadyside. But
that would be true even if the Board found that UPMC
and Presbyterian Shadyside were a single employer. In
either situation, Presbyterian Shadyside would be free to
challenge the judge’s unfair labor practice findings be-
fore the Board and in the court of appeals, UPMC would
be free to assist it in doing so, and neither entity would
be required to remedy any violations until a Board order
finding those violations had been enforced by the court
of appeals.
Fourth and finally, Member McFerran faults us for not
inviting outside briefing. Neither the Act, the Board’s
Rules, nor the Administrative Procedures Act requires
the Board to invite amicus briefing before reconsidering
precedent. The decision to allow such briefing is purely
discretionary and is based on the circumstances of each
case. In the case at hand, the Board is correcting a re-
cent, ill-advised deviation from longstanding precedent.
Moreover, the Board requested briefing in Postal Service
last year, and interested parties weighed in at that time.
Thus, the competing arguments have been made already
and recently at that, and there is no reason to believe they
have changed in the interim.
Furthermore, we respectfully disagree with Member
McFerran’s statement that the Board maintains a “routine
practice” to issue a notice and invitation to file amicus
briefs in “significant cases, particularly those where the
Board is contemplating reversal of precedent.” In the
past decade, the Board has freely overruled or disregard-
ed established precedent in numerous cases without sup-
plemental briefing. See, e.g., E.I. Du Pont de Nemours,
364 NLRB No. 113 (2016) (overruling 12-year-old prec-
edent in Courier-Journal, 342 NLRB 1093 (2004), and
52-year-old precedent in Shell Oil Co., 149 NLRB 283
(1964), without inviting briefing ); Graymont PA, Inc.,
364 NLRB No. 37 (2016) (overruling 9-year-old prece-
dent in Raley’s Supermarkets & Drug Centers, 349
NLRB 26 (2007), without inviting briefing); Loomis
Armored U.S., Inc., 364 NLRB No. 23 (2016) (overrul-
ing 32-year-old precedent in Wells Fargo Corp., 270
NLRB 787 (1984), without inviting briefing); Lincoln
Lutheran of Racine, 362 NLRB No. 188 (2015) (overrul-
ing 53-year-old precedent in Bethlehem Steel, 136 NLRB
1500 (1962), without inviting briefing); Pressroom
Cleaners, 361 NLRB 643 (2014) (overruling 8-year-old
precedent in Planned Building Services, 347 NLRB 670
(2006), without inviting briefing); and Fresh & Easy
Neighborhood Market, Inc., 361 NLRB 151 (2014)
(overruling 10-year-old precedent in Holling Press, 343
NLRB 301 (2004), without inviting briefing).
UPMC 11
For all these reasons, we find that UPMC’s proposed
remedial guarantee in exchange for the dismissal of the
single-employer allegation against UPMC is reasonable,
and we approve it.
REMEDY
We shall order that the single-employer allegation in
the Complaint be dismissed, but we shall retain UPMC
as a party for the purpose of ensuring enforcement of
UPMC’s guarantee of the remedies, if any, ultimately
ordered against Presbyterian Shadyside.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge in his
Supplemental Decision as modified below and orders
that the Respondent, UPMC, Pittsburgh, Pennsylvania,
shall take the action set forth in the Order as modified.
The single-employer allegation in the Complaint is here-
by dismissed, provided, however, that UPMC is retained
as a party for the purpose indicated in the Remedy sec-
tion, above.
The recommended Order is modified as follows: de-
lete the words “officers, agents, successors, and assigns,”
and substitute the word “fails” for the words “is unable.”
Thus, UPMC, as guarantor, “must ensure that Respond-
ent UPMC Presbyterian Shadyside takes all steps neces-
sary to comply with any remedies that may be contained
in the Board’s Order, including providing for any such
remedies itself, if UPMC Presbyterian Shadyside fails to
do so” (emphasis added).
Dated, Washington, D.C. December 11, 2017
__________________________________________
Philip A. Miscimarra, Chairman
__________________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER PEARCE, dissenting.
What we have here is a classic case of an answer in
search of a question. The sole issue presented is whether
the judge correctly dismissed the complaint allegation
that UPMC and its subsidiary, Presbyterian Shadyside,
constitute a single employer, based on UPMC’s offer to
serve as a guarantor of any remedies ultimately ordered
against Presbyterian Shadyside. As discussed below, the
judge clearly erred in concluding that UPMC’s guarantee
was as effective a remedy as one that would result from a
single-employer finding. Nonetheless, rather than ad-
dress this issue, the newly-minted majority has substitut-
ed another issue—more to its liking—as a stratagem to
reverse Board precedent. Specifically, the majority
reaches out to overrule Postal Service, 364 NLRB No.
116 (2016), in which the Board clarified the appropriate
standard for evaluating “consent” orders—and from
which then-Member Miscimarra vigorously dissented,
even though this case does not involve a consent order.
Although I am not surprised by my colleagues’ eleventh
hour efforts, I strongly disagree with their decision to
reverse precedent that is irrelevant to the disposition of
this case and which neither the judge nor the parties ad-
dressed.1
Background
The General Counsel issued a complaint in this pro-
ceeding alleging that UPMC and Presbyterian Shadyside,
as a single employer, engaged in extensive unfair labor
practices in response to the Union’s attempt to organize
their nonclinical support employees. Prior to the unfair
labor practice hearing, UPMC filed a motion to dismiss
the single-employer allegation, which the Board denied.
During the hearing, the judge denied UPMC’s petitions
to revoke subpoenas seeking documents relating to the
single-employer allegation, and when UPMC persisted in
its refusal to produce the documents, the judge severed
that allegation from the remainder of the case, while the
parties litigated the subpoena enforcement issue in feder-
al court. Thereafter, the judge issued a decision finding
that Presbyterian Shadyside committed more than 20
violations of Section 8(a)(1), (2), (3), and (4) of the Act.
While UPMC was continuing to contest its obligation
to comply with the subpoenas pertaining to the single-
employer allegation before the Third Circuit Court of
Appeals, it also sought to avoid litigating the issue alto-
gether by filing a “Partial Motion to Dismiss” with the
judge. In that motion, UPMC asserted that it would not
effectuate the purposes of the Act to proceed with UPMC
as a party since no remedy was sought from it. UPMC
further argued that, in any event, dismissal was appropri-
ate because it was willing to “guarantee the performance
by Presbyterian Shadyside of any remedial aspects of the
Decision and Order which survive the exceptions and
appeal process.” The General Counsel and the Charging

1 Although Member McFerran and I write separately, I fully endorse
the points raised in her dissent which persuasively demonstrate the
majority’s erroneous decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Party strongly opposed the Respondent’s motion. They
argued that dismissal was inappropriate because the
General Counsel had not yet had the opportunity to pre-
sent evidence in support of the single-employer allega-
tion and that a litigated single-employer finding was nec-
essary to achieve complete remedial relief and effectuate
the policies of the Act.
Without holding a hearing on the single-employer al-
legation, the judge issued a supplemental decision grant-
ing UPMC’s motion. The judge found that UPMC’s
guarantee was “as effective” as any remedy that would
result from a single-employer finding, and ordered that
“UPMC, its officers, agents, successors, and assigns,
shall be the guarantor of any remedies that the Board
may order” and, as the guarantor, UPMC “must ensure
that . . . Presbyterian Shadyside takes all steps necessary
to comply with any remedies that may be contained in
the Board’s Order, including providing for any such
remedies itself, if . . . Presbyterian Shadyside is unable to
do so.”
UPMC excepts to the judge’s supplemental decision,
arguing that the judge’s “officers, agents, successors, and
assigns” language was not part of its guarantee, and must
be struck. The General Counsel and the Charging Party
also except, arguing that the judge erred in finding that
“UPMC’s offer to serve as a guarantor of any Board Or-
der issued in this matter constitutes a remedy as effective
as any remedy resulting from a finding that . . . UPMC
and . . . Presbyterian Shadyside constitute a single em-
ployer.” I agree with the General Counsel and Charging
Party. Had the judge thoroughly analyzed and compared
the remedies, he would have found the guarantee wholly
inadequate.
Discussion
1. UPMC’s guarantee is not as effective as the
remedy that would result from a litigated
single-employer finding.
Both the judge and the majority make the same error
when they assert that UPMC’s guarantee is “as effective”
as the remedy that would result from a single-employer
finding. If UPMC and Presbyterian Shadyside were
found to be a single employer, the Board’s Order would
hold them both jointly and severally liable for the unfair
labor practices committed by Presbyterian Shadyside.
See Bolivar-Tees, Inc., 349 NLRB 720, 722 (2007) (be-
cause “single-employer status exists . . . we will hold all
four businesses jointly and severally liable to remedy the
unfair labor practices found”), enfd. 551 F.3d 722, 733
(8th Cir. 2008). This means that UPMC and Presbyteri-
an Shadyside, and their officers, agents, successors, and
assigns, would each be liable to remedy the unfair labor
practices from the outset and would be required to abide
by all of the provisions in the Order, including both the
cease-and-desist and affirmative order provisions. In
contrast, under UPMC’s guarantee, it will not be liable
for remedying the unfair labor practices from the outset.
Thus, the majority’s assertion that UPMC is liable to
the same extent as its subsidiary, Presbyterian Shadyside,
is simply incorrect. UPMC’s guarantee is a form of con-
tingent liability, which will only take effect if Presbyteri-
an Shadyside defaults on its remedial obligations. Under
joint and several liability, each entity is individually re-
sponsible for the entire obligation at the outset, whereas
the guarantee obligates UPMC to remedy the unfair labor
practices only if Presbyterian Shadyside fails to do so.
Furthermore, contingent liability is not equivalent to joint
and several liability because the imposition of liability on
UPMC as the guarantor can only be invoked after a de-
termination has been made that Presbyterian Shadyside
has defaulted on its remedial obligations. See Carpet,
Linoleum & Soft-Tile Layers Local 1238 (Nielsen Bros.,
Inc.), 160 NLRB 475, 483 (1966) (An “aggrieved party
. . . may not maintain an action against [a] guarantor . . .
until legal remedies against the primary obligor have
been exhausted.”). Thus, obtaining the remedies to
which aggrieved employees are entitled will be delayed
until after a default determination is made—a determina-
tion that would likely involve further litigation.2
The majority’s claim that UPMC is liable to the same
extent as Presbyterian Shadyside is wrong for an addi-
tional reason. Under the guarantee, UPMC will not be
liable for any prospective application of the cease-and-
desist provisions of the Order and will not be subject to
contempt sanctions for its own violations of the Order.
By contrast, were UPMC and Presbyterian Shadyside
found to be a single employer, each would be required to
refrain from future unfair labor practices pursuant to the
cease-and-desist provisions of the Order and each would
be subject to contempt sanctions for any failure to do so.
The inadequacy of the judge’s recommended Order is
exacerbated by my colleagues’ elimination of the cus-
tomary Board remedy extending its Orders to respond-
ents’ officers, agents, successors, and assigns.3 Under

2 UPMC would undoubtedly continue its aggressive litigation strat-
egy. It previously moved—unsuccessfully—to have the Board dismiss
the single-employer allegation. Failing that, it refused to comply with
subpoenas to produce information relevant to the single-employer
allegation and has appealed a district court order enforcing the subpoe-
nas to the Third Circuit Court of Appeals.
3 The majority has twisted itself into a pretzel in an effort to mask
the deficiencies in its decision. On the one hand, the majority grants
UPMC’s exception to the judge’s inclusion of “officers, agents, succes-
sors, and assigns” language in the recommended Order (presumably
because UPMC made no such offer). On the other hand, the majority
UPMC 13
the majority’s decision, if Presbyterian Shadyside fails to
fulfill its remedial obligations, the General Counsel will
seek to enforce UPMC’s guarantee to obtain the ordered
remedies. However, because the guarantee does not in-
clude “officers, agents, successors, and assigns” lan-
guage, the General Counsel may not be able to enforce it
if, for example, UPMC has ceased to operate or is sold to
another entity. The omission of this language is especial-
ly problematic in the healthcare industry where corporate
changes, including mergers and acquisitions, are com-
mon. Thus, the absence of “officers, agents, successors,
and assigns” language in the guarantee raises serious
enforcement problems that the Board avoids by routinely
including this standard provision in its Orders.4
Indeed, I question whether the judge would have ac-
cepted UPMC’s guarantee and found it as effective a
remedy as would result from a litigated single-employer
finding had the judge realized that UPMC would not
agree to bind its officers, agents, successors, and assigns.
I do not fault the judge for including this language—the
exact contours of the guarantee were not spelled out in
UPMC’s Partial Motion to Dismiss and, as explained,
“officers, agents, successors, and assigns” language is
included in all Board Orders. However, the mismatch
between the judge’s recommended Order and UPMC’s
intended guarantee demonstrates that there was no meet-

disingenuously claims that the “Order is binding against [UPMC’s]
officers, agents, successors, and assigns to the extent those parties
would be bound under the Federal Rules of Civil Procedure, regardless
of whether the Order specifically includes such language” (in likely
recognition that the absence of this requirement renders its Order whol-
ly inadequate). The majority cannot have it both ways; indeed it fails
as to each.
As an initial matter, I agree with Member McFerran that the majority
has failed to demonstrate that Board Orders automatically run against
“officers, agents, successors, and assigns” of adjudged respondents.
This is not surprising as the Board, since its inception, has expressly
included this important remedial language in its Orders—it has not left
it to mere implication. See, e.g., Oregon Worsted Co., 3 NLRB 36
(1937). Further, when evaluating a proposed settlement, the Board
considers the actual terms offered by the respondent. The Board will
not imply additional, not-agreed-upon terms. See, e.g., Enclosure
Suppliers, LLC, 09–CA–046169, 2011 WL 2837659 (July 14, 2011)
(rejecting a consent order because it expressly limited compliance to
the notice-posting period even though the respondent argued that it
implicitly provided for a standard compliance period).
At bottom, by granting UPMC’s exception and deleting “officers,
agents, successors, and assigns” from the Order, while simultaneously
asserting that this obligation nonetheless remains, the majority attempts
to fit the square peg of UPMC’s guarantor offer into the round hole of
consent orders. The pieces do not fit. And, as I explain below, consent
orders simply are not at issue in this case.
4 The majority mischaracterizes the General Counsel’s position re-
garding the removal of this language. The General Counsel’s statement
that doing so “would change nothing from a legal standpoint” expresses
only that UPMC’s guarantee would have been deficient even had “of-
ficers, agents, successors, and assigns” been included.
ing of the minds between the judge and UPMC. Moreo-
ver, my colleagues overreach by approving a guarantor
proposal that was not even contemplated by the judge.
Underlying my colleagues’ misguided acceptance of
UPMC’s inadequate guarantee is their failure to appreci-
ate the significance of the single-employer allegation. A
key objective of the Board’s single-employer doctrine “is
to ensure that the Board’s decision and order are binding
on the entity or entities responsible for controlling labor
relations.” See Oaktree Capital Management, L.P. v.
NLRB, 452 Fed.Appx. 433, 438 (5th Cir. 2011). Here,
the General Counsel has alleged that “there is reasonable
cause to believe that both [UPMC and Presbyterian
Shadyside] were intimately connected and had substan-
tive co-accountability for labor relations.” According to
the General Counsel and the Charging Party, the evi-
dence will show that UPMC has “comprehensive and
ultimate authority over Presbyterian Shadyside” and that
UPMC delegated authority over labor relations to Pres-
byterian Shadyside, but that delegation could be rescind-
ed at any time. By accepting this guarantee, the General
Counsel is denied the opportunity to litigate this im-
portant issue.
The majority’s acceptance of the guarantee based on
the judge’s finding that no evidence was presented that
UPMC independently committed unfair labor practices
further reflects their failure to comprehend the remedial
importance of a single-employer finding. “A ‘single
employer’ relationship exists where two nominally sepa-
rate entities are actually part of an integrated enterprise
so that, for all purposes, there is in fact only a ‘single
employer.’” NLRB v. Browning-Ferris Industries, 691
F.2d 1117, 1122 (3d Cir. 1982). When two respondents
are found to be a single employer, they are each jointly
and severally liable for any unfair labor practices com-
mitted by the other. See Lederach Electric, Inc., 362
NLRB No. 14, slip op. at 1 (2015), enfd. Morris Road
Partners, LLC v. NLRB, 637 Fed.Appx. 682 (3d Cir.
2016); NLRB v. Bolivar-Tees, Inc., 551 F.3d 722, 722 fn.
2 (8th Cir. 2008) (“The single employer doctrine is a
Board creation that treats two or more related enterprises
as a single employer for purposes of holding the enter-
prises jointly . . . liab[le] for any unfair labor practices.”)
(citation omitted). Thus, contrary to the majority, it is
entirely irrelevant that UPMC is not charged with direct-
ly committing any unfair labor practices. The majority is
also wrong when they refer to UPMC as a mere “back-up
party” and state that Presbyterian Shadyside “should be
primarily responsible.” Indeed, as they recognize else-
where in their decision, “when a parent company is
found to be a single employer with its subsidiary, the
parent company is liable for the subsidiary’s unfair labor
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
practices ‘to the same extent’ as the subsidiary,” citing
Flat Dog Productions, Inc., 347 NLRB 1180, 1182
(2006) (emphasis added).5
2. The majority has overreached by addressing an issue
not presented in this case and has failed to provide an
adequate justification for overruling Postal Service.
Rather than resolving this case based on the issue be-
fore us, my colleagues have reached out to decide an
issue that is clearly not presented: whether to overrule
Postal Service, 364 NLRB No. 116. In Postal Service,
the Board clarified the appropriate standard for evaluat-
ing consent orders and required that such orders which
incorporate settlement terms proposed by a respondent,
over the objections of the General Counsel and the
charging party, provide a full remedy for all of the viola-
tions alleged in the complaint. Id., slip op. at 1.6 Postal
Service is inapplicable here because this case does not
involve a consent order.7 None of the parties has asked
the Board to overrule Postal Service or even argued that
Independent Stave Co., 287 NLRB 740 (1987), is rele-

5 In Flat Dog Productions, as in all cases involving single-employer
findings, the Board imposed joint and several liability on the parent and
subsidiary companies, and their officers, agents, successors, and as-
signs, for the violations committed by the subsidiary company. See id.
6 My colleagues refer to consent orders as “consent settlement
agreements.” As the Board explained in Postal Service, such a descrip-
tion is inaccurate because there is no “agreement” between any of the
parties. Id., slip op. at 22 fn. 5.
7 The majority incorrectly claims that the General Counsel agrees
that the standard for consent orders is at issue here. In his exceptions
brief, the General Counsel merely commented that “to the extent the
judge’s decision . . . could be considered equivalent to approving a de
facto consent order, the Independent Stave standard is not met.” (em-
phasis added.) The majority also asserts that, after the issuance of
Postal Service, the Charging Party filed a letter with the Board request-
ing that it take notice of the decision. What is most relevant here is the
position of UPMC and tellingly, the majority conveniently omits that
UPMC repeatedly asserted to the Board that “the concept of consent
orders is irrelevant to this matter” and that the judge “did not enter a
consent order and did not accept a proposed settlement by UPMC.”
And in response to the Charging Party’s letter to the Board (which the
majority again fails to acknowledge), the Respondents vehemently
argued that Postal Service had no bearing on this case. The Respond-
ents stated:
The authority submitted by the [Charging Party] concerns the standard
to be used by administrative law judges in approving “consent or-
ders,” a concept that is neither pertinent nor significant to the pending
exceptions. A consent order involves the dismissal of a complaint by
an administrative law judge based on settlement terms proposed by a
respondent over the objections of the General Counsel and charging
party. [The administrative law judge] did not enter a consent order
and did not accept a proposed settlement by UPMC. He did not rely
on, analogize to, or in any way address consent order principles. In-
stead, he granted UPMC’s partial motion to dismiss based on his ex-
press finding that further litigation would not effectuate the policies of
the Act.
vant to determining whether the judge erred in dismiss-
ing the single-employer allegation.8
I question my colleagues’ motives and the wisdom of
overruling recent precedent involving consent orders in a
case where it is not implicated, solely to adopt Chairman
Miscimarra’s dissent in Postal Service. Further, their
attempt to substitute Postal Service with Independent
Stave fails both analytically and factually. Independent
Stave involved non-Board settlement agreements be-
tween the respondent and three charging parties, opposed
by the General Counsel. 287 NLRB at 740. Based on
non-Board settlement agreements between the respond-
ent and those charging parties, the Board granted the
respondent’s motion to dismiss complaint allegations
relating to their claims. However, the Independent Stave
Board rejected the respondent’s motion to dismiss as to a
fourth charging party who did not sign a settlement
agreement. Id. at 744. Because there had been no
agreement, complaint allegations as to that charging par-
ty were remanded for a hearing.
As the majority explained in Postal Service, none of
the policies underlying the Board’s Independent Stave
decision applies in consent order cases. In Independent
Stave, the Board repeatedly cited its “policy of encourag-
ing the peaceful, nonlitigious resolution of disputes,”
“commitment to private negotiated settlement agree-
ments,” “policy of ‘encouraging parties to resolve dis-
putes without resort to Board processes,’” and “strong
commitment to settlements.” Id. at 741 (citations omit-
ted). These considerations are obviously not present
when only the respondent has agreed to be bound by the
terms of the consent order.
Additionally, the Independent Stave Board’s justifica-
tion for accepting a less than full remedy does not apply
in consent order cases. In Independent Stave, the Board
explained that a less than full remedy was acceptable
because the “parties to a non-Board settlement recog-
nize[] that the outcome of litigation is uncertain” and
“decide to accept a compromise” rather than face the
risks of litigation. Id. at 743.9 By contrast, in consent

8 Under Independent Stave, the Board considers all the circumstanc-
es surrounding a settlement agreement, including: “(1) whether the
charging party(ies), the respondent(s), and any of the individual dis-
criminatee(s) have agreed to be bound, and the position taken by the
General Counsel regarding the settlement; (2) whether the settlement is
reasonable in light of the nature of the violations alleged, the risks
inherent in litigation, and the stage of litigation; (3) whether there has
been any fraud, coercion, or duress by any of the parties in reaching the
settlement; and (4) whether the respondent has engaged in a history of
violations of the Act or has breached previous settlement agreements
resolving unfair labor practice disputes.” 287 NLRB at 743.
9 In Independent Stave, the Board criticized Clear Haven Nursing
Home, 236 NLRB 853 (1978), where the Board had rejected a non-
Board settlement agreement between the respondent and charging party
UPMC 15
order cases, the charging party and the General Counsel
have decided to accept the risks of litigation in the hopes
of receiving a full remedy. Thus, nothing in Independent
Stave suggests that the standard should apply to consent
orders. Rather, the case was explicitly formulated to
evaluate non-Board settlement agreements and was driv-
en by the Board’s policy favoring private dispute resolu-
tion and by deference to the charging party’s judgment
concerning its own interests in accepting less than a full
remedy.
I strongly disagree with my colleagues’ assertion that
applying the Independent Stave standard in consent order
cases “encourag[es] voluntary dispute resolution, pro-
mot[es] industrial peace, conserv[es] the resources of the
Board, and serv[es] the public interest.” It is absurd for
the majority to claim that these purposes of the Act are
achieved in consent order cases where the charging party
objects to the respondent’s proposed settlement terms.
As the Board held in Independent Stave, “honoring the
parties’ agreements advances the Act’s purposes of en-
couraging voluntary dispute resolution, promoting indus-
trial peace, conserving the resources of the Board, and
serving the public interest.” Id. (emphasis added).10
When the Board approves a consent order, it is obviously
not honoring the parties’ agreement because only the
respondent has agreed to be bound. Further, consent
orders do not advance the Independent Stave goals of
encouraging voluntary dispute resolution or promoting
industrial peace because the charging party objects. In
Independent Stave, the Board explained that the public
interest is served by “encouraging the parties’ achieve-
ment of mutually agreeable settlement without litiga-
tion.” Id. at 742 (emphasis added). Clearly, a consent
order is not a mutually agreeable outcome. Therefore,
overruling Postal Service does not advance the purposes
and policies of the Act.
None of the other reasons cited by my colleagues in
support of applying the Independent Stave standard is
persuasive. The majority asserts that applying Independ-
ent Stave to consent orders is consistent with the Board’s
longstanding policy of accepting reasonable settlement
agreements. As discussed, the majority errs in equating
consent orders with settlement agreements because there
is no “agreement” between the parties in consent order
cases. Further, they oversimplify the Independent Stave

union even though it provided the union with a better remedy than it
would have received had the General Counsel successfully litigated the
case. 287 NLRB at 742. Contrary to my colleagues, the Board’s dis-
cussion of Clear Haven does not support overruling Postal Service
because Clear Haven involved a non-Board settlement and a more than
full remedy.
10 My colleagues conveniently omit the italicized portion of this
quote.
standard by referring to it as a test of reasonableness. As
the Board explained in Independent Stave, the test is
“whether it will effectuate the purposes of the Act to give
effect to the [parties’] settlement” based on the consider-
ation of a number of factors. Id. at 741. Indeed, the cas-
es cited by the majority emphasize that the opposition of
the General Counsel and the charging party is “[o]ne of
the foremost considerations” and “is definitely signifi-
cant and militates heavily against accepting” a proposed
settlement offer. Iron Workers Local 27 (Morrison-
Knudson), 313 NLRB 215, 217 (1993); see also Sea Jet
Trucking Corp., 327 NLRB 540, 550 (1999). My col-
leagues also contend that the Board’s acceptance of a less
than full remedy may be in the best interest of the parties
and will often leave them in a better position than litiga-
tion. That is a question for all the parties to decide and it
is impossible to know whether settlement or litigation
will provide the best outcome for the parties. There is no
reason for the Board to substitute its judgment for that of
the parties in weighing the risks and benefits of litigation
versus settlement. Moreover, as this is not a “settle-
ment,” it cannot be assessed under those standards.
In sum, not only have my colleagues failed to provide
an adequate justification for their decision to overrule the
Postal Service standard just one year after the Board
adopted it, they have overreached to address this issue
even though it is not presented in this case.
3. UPMC’s guarantee does not satisfy Postal Service or
Independent Stave.
Although neither Postal Service nor Independent Stave
applies here because this case does not involve a consent
order or settlement agreement, UPMC’s guarantee is
clearly insufficient under either standard. UPMC’s guar-
antee fails the Postal Service standard because it does not
provide a full remedy for all of the violations alleged in
the complaint. 364 NLRB No. 116, slip op. at 1, 3.
UPMC’s guarantee also fails to satisfy the Independent
Stave standard. 287 NLRB at 743. First, both the Gen-
eral Counsel and the Charging Party strenuously object
to the guarantee. Second, it is not reasonable to accept
the guarantee at this stage of the proceeding because, as
explained, the guarantee does not provide an adequate
remedy for the alleged violations.11 Third, UPMC and its
subsidiaries have been involved in ongoing litigation at

11 My colleagues believe that accepting the guarantee is reasonable
in light of the risks inherent in litigation and in order to expedite the
resolution of this proceeding. However, by strenuously objecting to the
guarantee, the General Counsel and the Charging Party have agreed to
assume the risk of further litigation. The Board should not, under the
guise of efficiency and conservation of resources, force an inadequate
guarantee upon the General Counsel and Charging Party, where they
have chosen with open eyes to reject it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
the Board and UPMC’s subsidiaries have been found to
have violated the Act.12 In addition, the violations al-
leged in this case may, if found, arguably constitute a
breach of the previous settlement agreements, triggering
the default provisions of those agreements. Thus, I
would find that UPMC’s guarantee fails to satisfy either
the Postal Service or Independent Stave standards.
Ultimately, my colleagues have side-stepped the actual
issue presented in this case in their zeal to reverse Postal
Service, 364 NLRB No. 116 (2016), and embrace then-
Member Miscimarra’s dissent. On behalf of the Agency,
I am disheartened by their actions; on the basis of the
law, I dissent.
Dated, Washington, D.C. December 11, 2017
______________________________________
Mark Gaston Pearce, Member
NATIONAL LABOR RELATIONS BOARD
MEMBER MCFERRAN, dissenting.
This case presents the Board’s new majority with a
pretext to overrule recent precedent1—without notice or
an opportunity for briefing. But the majority does more
than restore an earlier, flawed rule with respect to re-
spondents’ unilateral efforts to terminate Board litigation
over the objections of the General Counsel and the
charging party. It reaches a result that threatens to broad-
ly frustrate the General Counsel’s ability to establish a
respondent’s status as a “single employer” under the Na-
tional Labor Relations Act and thus its liability for unfair
labor practices committed by a nominally independent
entity. Here, what the majority calls a “consent settle-
ment agreement” (a misleading misnomer2) amounts to a

12 Some of these cases have resulted in settlement agreements re-
quiring remedial action by UPMC’s subsidiaries, including Presbyteri-
an Shadyside. See, e.g., Cases 06–CA–081896 et al. (UPMC I); Cases
06–CA–119480 et al. (UPMC III). At least one case has resulted in a
finding of a violation against Presbyterian Shadyside and another one
of UPMC’s subsidiaries. See UPMC, 362 NLRB No. 191, slip op. at 1
fn. 2 (2015), which also imposed remedial obligations on UPMC (pur-
suant to a stipulation) even though it was not found to violate the Act
“as a separate entity.” Other cases are pending. See, e.g., Cases 06–
CA–171117 et al. (UPMC IV). In that case, as here, a single-employer
allegation against UPMC has been severed for litigation after the con-
clusion of the merits litigation.
1 Postal Service, 364 NLRB No. 116 (2016). As explained in Sec-
tion II-A below, the majority cites no compelling reason for reversing
precedent here, even if the issue decided in Postal Service were fairly
presented on the facts of this case.
2 In cases like this one, as the Postal Service Board pointed out,
“there is no ‘agreement’ between any parties,” and the Board’s order is
“involuntarily imposed on all parties other than the respondent.” 364
potentially illusory promise by the respondent employer
that does not terminate the litigation, but instead threat-
ens to prolong it, and that does not represent even a
rough equivalent of a single-employer finding. In no
compelling way does the unprecedented outcome here
effectuate the purposes of the National Labor Relations
Act.
The majority’s new approach, meanwhile, seemingly
invites gamesmanship from respondents facing liability
under the Act. They are effectively encouraged to find
ways around the General Counsel and to deal directly
with the Board, straining its statutory role of neutral ad-
judicator. I agree with Member Pearce’s well-reasoned
dissent here, but write separately to emphasize certain
points.
I.
In this case, as I will explain, it became very difficult
for the General Counsel to prosecute, and the administra-
tive law judge to adjudicate, the single-employer allega-
tion against UPMC in a timely way. The judge accepted
UPMC’s proffered way out of the dilemma—perhaps
understandably, but nevertheless erroneously.
This case involves allegations that UPMC and its hos-
pital subsidiary, Presbyterian Shadyside, are single em-
ployers who committed a wide range of unfair labor
practices—from surveillance to discriminatory discharg-
es—in resisting a union-organizing drive. After unsuc-
cessfully moving to dismiss the single-employer allega-
tion (the Board denied the motion), UPMC contested
document subpoenas relating to the single-employer al-
legation and has now pursued that dispute to the U.S.
Court of Appeals for the Third Circuit. The administra-
tive law judge accordingly severed the single-employer
allegation from the rest of the case, while proceeding to
conduct a hearing on the remaining issues. As he ex-
plained, the judge’s “reason for bifurcating the case was
that [he] did not want ongoing subpoena enforcement
proceedings regarding the single employer issue to delay
[his] resolution of the substantive unfair labor practice
issues.”
The judge then found that Presbyterian Shadyside had
committed a variety of unfair labor practices. (His deci-
sion is pending before the Board on exceptions from all
parties.) In turn, UPMC asked the judge to dismiss the
single-employer allegation, offering in its motion to
“guarantee the performance by Presbyterian Shadyside of
any remedial aspects of the [judge’s] Decision and Order

NLRB No. 116, slip op. at 2–3 fn. 5. The majority today adopts the
unfortunate terminology of then-Member Miscimarra’s dissent in Post-
al Service.
UPMC 17
[finding Presbyterian Shadyside liable] which survive the
exceptions and appeals process” (emphasis added).
Over the objections of the General Counsel and charg-
ing party Union—and without holding a hearing on the
single-employer allegation—the judge granted UPMC’s
motion. He found that UPMC’s “offer to serve as a
guarantor of any remedy that the Board may ultimately
order . . . [was] as effective a remedy” as could result
from a single-employer finding and the imposition of
joint and several liability on UPMC and Shadyside. The
judge cited the “time-consuming and expensive course of
litigating the single employer issue to its conclusion” and
the “risk that further litigation . . . [might] result in a
finding that UPMC and Presbyterian Shadyside [were]
not, in fact a single employer.” Further litigation, the
judge concluded, thus “would not effectuate the purposes
of the Act.”
Accordingly, the judge issued a recommended order
reciting (1) that “UPMC, its officers, agents, successors,
and assigns shall be the guarantor of any remedies that
the Board may order in the original decision in this case”
and (2) that
[a]s the guarantor, Respondent UPMC must ensure that
… Presbyterian Shadyside takes all steps necessary to
comply with any remedies that may be contained in the
Board’s Order, including providing for any such reme-
dies itself, if … Presbyterian Shadyside is unable to do
so. [emphasis added]
All parties have excepted to the judge’s recommended or-
der. The General Counsel and the Charging Party challenge
the judge’s finding that accepting UPMC’s guarantee was
the equivalent of a single-employer determination. UPMC
excepts to the judge’s inclusion of order language binding
its “officers, agents, successor, and assigns,” arguing that it
had never offered such a commitment.
II.
The procedural posture of this case is unusual, perhaps
unique, and as a result, the case does not fit neatly (if at
all) into preexisting categories for evaluating situations
in which the Board has been asked to end a proceeding
over the objection of one or more of the parties involved.
Until today, the Board had two basic frameworks. In the
case of a true settlement to which the General Counsel or
the charging party (in addition to the respondent) had
agreed, the Board applied the framework of Independent
Stave Co., 287 NLRB 740 (1987). Independent Stave
was based on the Board’s longstanding “policy of en-
couraging the peaceful, nonlitigious resolution of dis-
putes” through “private negotiated settlement agree-
ments” and on the Board’s corresponding deference to
the parties’ own determinations that compromise (i.e.,
accepting less than a full Board remedy) was in their best
interests. Id. at 741–743.
In contrast, where neither the General Counsel nor the
charging party had entered into a settlement with the
respondent, but the respondent offered to consent to a
Board remedial order (over the objections of both the
General Counsel and the charging party), the Board ap-
plied the framework of Postal Service, supra. In Postal
Service, the Board rejected the application of the Inde-
pendent Stave standard to such situations, observing that
“[n]either of the considerations that justify approving
non-Board settlements that lack the full remedy called
for under Board law are present in the case of a consent
order agreed to by no party other than the respondent,”
364 NLRB No. 116, slip op. at 2, but found that ac-
ceptance of such an order would serve the goals of the
statute if, and only if, the respondent offered to consent
to an order providing a full remedy for the alleged viola-
tions, as such an order would serve interests of adminis-
trative economy in preventing further unnecessary litiga-
tion. Id at 3.
A.
Initially, the majority today reaches out to overrule
Postal Service and holds that Independent Stave applies
uniformly, despite the fact that the circumstances here do
not align with either of these frameworks. I believe that
Postal Service, in which I participated, was correctly
decided and that the majority errs in overruling that deci-
sion without even bothering to give notice or to invite
briefing, a sharp break with well-established practice,3

3 In the last decade, issuing a notice and invitation to file briefs has
become the Board’s routine practice in significant cases, particularly
those where the Board is contemplating reversal of precedent. See,
e.g., Temple University Hospital, Inc., Case 04–RC–162716, Order
Granting Review in Part and Invitation to File Briefs (filed Dec. 29,
2016), available at
https://apps.nlrb.gov/link/document.aspx/09031d45822fb922 (whether
the Board should exercise its discretion to decline jurisdiction over the
employer); King Soopers, Inc., 364 NLRB No. 93 (2016) (whether the
Board should revise its treatment of search-for-work and interim em-
ployment expenses as part of the make-whole remedy for unlawfully
discharged employees), enfd. in relevant part 859 F.3d 23 (D.C. Cir.
2017); Columbia University, 364 NLRB No. 90 (2016) (whether the
Board should modify or overrule its decision in Brown University, 342
NLRB 483 (2004), in which it held that graduate assistants who per-
form services at a university in connection with their studies are not
statutory employees under the National Labor Relations Act); Miller &
Anderson, Inc., 364 NLRB No. 39 (2016) (whether the Board should
adhere to its decision in Oakwood Care Center, 343 NLRB 659 (2004),
which disallowed inclusion of solely employed employees and jointly
employed employees in the same unit absent consent of the employers,
and if not, whether the Board should return to the holding of M.B.
Sturgis, Inc., 331 NLRB 1298 (2000), which permits the inclusion of
both solely and jointly employed employees in the same unit without
the consent of the employers); Service Workers Local 1192 (Buckeye
Florida Corp.), 362 NLRB No. 187 (2015) (whether the Board should
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18

reconsider its rule that, in the absence of a valid union-security clause, a
union may not charge nonmembers a fee for processing grievances);
BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (whether the
Board should adhere to its existing joint employer standard or adopt a
new standard); Northwestern University, 362 NLRB No. 167 (2015)
(whether the Board should find grant-in-aid scholarship football players
are employees under the NLRA); Purple Communications, Inc., 361
NLRB 1050 (2014) (whether the Board should adopt a rule that em-
ployees who are permitted to use their employer’s email for work pur-
poses have the right to use it for Section 7 activity, subject only to the
need to maintain production and discipline); Pacific Lutheran Universi-
ty, 361 NLRB 1404 (2014) (whether a religiously-affiliated university
is subject to the Board’s jurisdiction, and whether certain university
faculty members seeking to be represented by a union are employees
covered by the National Labor Relations Act or excluded managerial
employees); Latino Express, Inc., 361 NLRB 1171 (2014) (whether, in
awarding backpay, the Board should routinely require the respondent
to: 1) submit documentation to the Social Security Administration so
that backpay is allocated to the appropriate calendar quarters, and 2)
pay for any excess federal and state income taxes owed as a result of
receiving a lump-sum payment); Babcock & Wilcox Construction Co.,
361 NLRB 1127 (2014) (whether the Board should change the standard
for determining when the Board should defer to an arbitration award),
rev. denied sub nom. Beneli v. NLRB, 873 F.3d 1094 (9th Cir. 2017);
New York University, Case 02–RC–023481, Notice and Invitation to
File Briefs (filed June 22, 2012), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3252/ntc_02-rc-23481_nyu_and_polytechnic_notice___invitation.pdf
(whether graduate student assistants who perform services at a universi-
ty in connection with their studies are or are not statutory employees
within the meaning of Section 2(3) of the National Labor Relations
Act); Point Park University, Case 06–RC–012276, Notice and Invita-
tion to File Briefs (filed May 22, 2012), available at
https://apps.nlrb.gov/link/document.aspx/09031d4580a0ee7d (whether
university faculty members seeking to be represented by a union are
employees covered by the National Labor Relations Act or excluded
managers); D.R. Horton, Inc., 357 NLRB 2277 (2012) (whether manda-
tory arbitration agreements that preclude employees from filing joint,
class, or collective claims addressing their wages, hours or other work-
ing conditions against the employer in any forum, arbitral or judicial,
violate the NLRA), enf. granted in part and denied in part, 737 F.3d
344 (5th Cir. 2013); Hawaii Tribune-Herald, Case 37–CA–007043,
Notice and Invitation to File Briefs (filed March 2, 2011), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/stephensmediainvite.pdf (whether the Respondent had a duty to
provide the Union with a statement provided to it by an employee or
any other statements that it obtained in the course of its investigation of
another employee’s alleged misconduct); Chicago Mathematics and
Science Academy Charter School, Inc., Case 13–RM–001768, Notice
and Invitation to File Briefs (filed January 10, 2011), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/chicago_mathematics_brief.pdf (whether an Illinois charter
school should fall under the jurisdiction of the NLRB or the Illinois
Educational Labor Relations Board); Specialty Healthcare & Rehabili-
tation Center of Mobile, 357 NLRB 934 (2011) (what constitutes an
appropriate bargaining unit), enfd. sub nom. Kindred Nursing Centers
East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013); Roundy’s Inc., Case
30–CA–017185, Notice and Invitation to File Briefs (filed November
12, 2010), available at
https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-
3253/roundys_notice_and_invitation.pdf (what standard the Board
should apply to define discrimination in cases alleging unlawful em-
ployer discrimination in nonemployee access); UGL-UNICCO Service
Co., 357 NLRB 801 (2011) (what duties a successor employer has
and the process followed in Postal Service itself.4 (None
of the cases cited by the majority diminish the fact that
inviting briefs has become an established Board norm –
and the majority tellingly cites no recent case in which

toward an incumbent union); Lamons Gasket Co., 357 NLRB 739
(2011) (whether, and how long, employees and other unions should
have to file for an election following an employer’s voluntary recogni-
tion of a union); J. Picini Flooring, 356 NLRB 11 (2010) (whether
Board ordered remedial notices should be posted electronically and, if
so, what legal standard should apply and at what stage of the proceed-
ings any necessary factual showing should be required); Kentucky River
Medical Center, 356 NLRB 6 (2010) (whether the Board should rou-
tinely order compound interest on backpay and other monetary awards
in backpay cases and if so, what the standard period for compounding
should be); Long Island Head Start Child Development Services, 354
NLRB No. 82 (2009) (two-member Board decision) (whether the Board
should find contract termination based on bargaining even in the ab-
sence of any contractually-required notice); Register Guard, 351 NLRB
1110 (2007) (whether employees have a Section 7 right to use their
employer’s email system to communicate with one another, what
standard should govern that determination, and whether an employer
violates the Act if it permits other nonwork-related emails but prohibits
emails on Section 7 matters), enfd. in part and remanded in part sub
nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009); Can-
Am Plumbing, Inc., 350 NLRB 947 (2007) (whether the job targeting
program at issue violated the Davis-Bacon Act), enfd. 340 Fed.Appx.
354 (9th Cir. 2009); Dana Corp., 351 NLRB 434 (2007) (whether the
Board should modify its recognition bar doctrine as articulated in Kel-
ler Plastics Eastern, Inc., 157 NLRB 583 (1966), Smith’s Food & Drug
Centers, 320 NLRB 844 (1996), and Seattle Mariners, 335 NLRB 563
(2001)); Alyeska Pipeline Service Co., 348 NLRB 779 (2006) (whether
a systemwide presumption is warranted in the circumstances of the
instant case); Oakwood Healthcare, Inc., 348 NLRB 686 (2006) (seek-
ing comment relating to (1) the meaning of “assign,” “responsibly to
direct,” and “independent judgment,” as those terms are used in Section
2(11) of the Act; and (2) an appropriate test for determining unit
placement of employees who take turns or “rotate” as supervisors), see
also Croft Metals, Inc., 348 NLRB 717 (2006) and Golden Crest Heath
Center, 348 NLRB 727 (2006); Firstline Transportation Security, 347
NLRB 447 (2006) (whether the Board should assert jurisdiction over
the employer, a private company contracting with the Transportation
Security Administration).
4 364 NLRB No. 116, slip op. at 1 fn. 1 (referring to notice and invi-
tation to file briefs). The majority insists the “decision to allow such
briefing is purely discretionary and is based on the circumstances of
each case,” but its disregard for the recognized benefits of public partic-
ipation in the Board’s decision-making process is regrettable—and one
can only hope that today’s approach does not signal a new Board policy
of excluding the public from important decisionmaking.
Remarkably, the majority points to the fact that the Postal Service
Board invited briefing as a reason not to do so here, asserting that
“there is no reason to believe” that different arguments might be pre-
sented to the Board. But our assumption should be that public partici-
pation is desirable, unless there are legitimate and compelling reasons
to think otherwise. No party to this case, and no member of the public,
has been permitted to address the Board’s decision in Postal Service
and its specific rationale, as opposed to the general question presented.
Nor has there been an opportunity for the public to address the impact
of the application of the Postal Service analysis to the decision of spe-
cific cases and controversies. The better course here would be to give
interested persons (including those who did not file briefs in Postal
Service) the opportunity to address the Board.
UPMC 19
the Board refused to seek briefing over objections from a
member.5)

5 The majority asserts that there are “numerous” cases where the
Board “has freely overruled or disregarded established prece-
dent…without supplemental briefing.” But the six decisions the major-
ity cites are easily distinguishable from this one. See E.I. Du Pont de
Nemours, 364 NLRB No. 113 (2016) (considering whether unilateral
changes made after expiration of a collective-bargaining agreement
violate the Act); Graymont PA, Inc., 364 NLRB No. 37 (2016) (consid-
ering, inter alia, whether the Board is precluded from considering an
unalleged failure to timely disclose that requested information does not
exist when the unalleged issue is closely connected to the subject mat-
ter of the complaint and has been fully litigated); Loomis Armored U.S.,
Inc., 364 NLRB No. 23 (2016) (considering whether an employer,
having voluntarily recognized a “mixed-guard union” as the representa-
tive of its security guards, lawfully may withdraw recognition if no
collective-bargaining agreement is in place, even without an actual loss
of majority support for the union); Lincoln Lutheran of Racine, 362
NLRB No. 188 (2015) (considering whether an employer’s obligation
to check off union dues from employees’ wages terminates upon expi-
ration of a collective-bargaining agreement); Pressroom Cleaners, 361
NLRB 643 (2014) (considering, inter alia, whether an employer can
limit its backpay liability in compliance through an evidentiary show-
ing or whether the predecessor employer’s terms and conditions of
employment should continue until the parties bargain to agreement or
impasse); Fresh & Easy Neighborhood Market, Inc., 361 NLRB 151
(2014) (considering, inter alia, whether an employee was engaged in
“concerted activity” for the purpose of “mutual aid or protection” when
she sought assistance from her coworkers in raising a sexual harass-
ment complaint to her employer).
First, in all six cited cases a party explicitly and publicly asked the
Board to overrule precedent, a fact surely not lost on persons interested
in the development of federal labor law. (The General Counsel asked
the Board to revisit or overrule precedent in Fresh & Easy, Lincoln
Lutheran, Loomis, Graymont, and Du Pont; in Pressroom Cleaners, the
Charging Party asked the Board to overrule precedent.)
In two cited cases, Loomis and Lincoln Lutheran, amicus briefs were
actually filed. See Loomis Armored U.S., Inc., 364 NLRB No. 23
(2016) (amicus brief filed by SEIU urging the Board to overrule Wells
Fargo Corp., 270 NLRB 787 (1984)); Lincoln Lutheran of Racine, 362
NLRB No. 188 (2015) (amicus brief filed by National Right to Work
Legal Defense Foundation urging the Board not to overrule Bethlehem
Steel, 136 NLRB 1500 (1962)).
Both Du Pont and Lincoln Lutheran, meanwhile, were the culmina-
tion of long-running discussions of the precedent they ultimately over-
ruled. In Du Pont, the Board accepted a remand from the United States
Court of Appeals for the District of Columbia Circuit for the express
purpose of deciding between two conflicting branches of precedent.
See E.I. Du Pont de Nemours and Co. v. NLRB, 682 F.3d 65, 70 (D.C.
Cir. 2012). Lincoln Lutheran, in turn, was the culmination of a 15-year
dialogue with the United States Court of Appeals for the Ninth Circuit
about Bethlehem Steel. See WKYC-TV, Inc., 359 NLRB 286, 286
(2012) (discussing history). And, as already pointed out, in none of the
cases cited by the majority did the Board refuse to request briefing over
the objection of one or more Board members.
The cases cited by the majority throw into even sharper relief the ab-
errance of the majority’s process in this case. Unlike the six cases cited
by the majority, here, no party—not the General Counsel, the Charging
Party, or the Respondent—has asked us to revisit or overrule precedent.
This decision is not the culmination of a long-running dialogue with a
federal court of appeals. Neither the parties nor the public knew that
the Board was planning to overrule precedent in this case.
The majority presents no compelling justification for
this reversal. A change in the Board’s composition is not
a basis for revisiting an earlier decision. See UFCW,
Local No. 1996 (Visiting Nurse Health System, Inc.), 338
NLRB 1074, 1074 (2003) (full Board), citing Iron Work-
ers Local 471 (Wagner Iron Works), 108 NLRB 1237,
1239 (1954).6 In addition, the majority does not even
attempt to argue that the rule adopted in Postal Service is
somehow contrary to the National Labor Relations Act.
In fact, Section 10(a) of the Act makes explicit that the
Board’s authority to redress unfair labor practices by
adjudicating cases “shall not be affected by any other
means of adjustment or prevention that has been or may
be established by agreement, law, or otherwise.” 29
U.S.C. §160(a).
While the majority says that the Postal Service Board
“improperly deviated from policies favoring the appro-
priate settlement of disputed allegations,” it never per-
suasively explains how the prior Board erred in distin-
guishing between (1) a respondent’s unilateral offer to
resolve a case, over the objections of both the General
Counsel and the charging party; and (2) a bilateral set-
tlement that actually reflects the agreement of the re-
spondent and at least one opposing party. To treat cases
in which there has been no settlement between opposing
parties as if there had been such a settlement—by mak-
ing Independent Stave a unitary standard applicable to
consent-order cases, as well as settlement cases—is irra-
tional.7

6 The majority points out that these cases involved parties’ motions
to reconsider earlier decisions, filed under Sec. 102.48 of the Board’s
Rules and Regulations. But the underlying principle applies where, as
here, overruling recent precedent is the issue. Even when Board mem-
bers change, Board law should stay the same, unless there is a good
reason—independent of the Board’s new composition—to change it.
The majority quotes with apparent approval the observation of the U.S.
Court of Appeals for the District of Columbia Circuit that Board doc-
trine will “invariably fluctuate with the changing compositions of the
Board.” Epilepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d
1095, 1097 (D.C. Cir. 2001). It seems unlikely, however, that a re-
viewing court would approve the Board’s reversal of precedent if the
only credible reason offered for the change was that the Board had
different members. Nor does the fact that a Board member’s statutory
term expires every year (also cited by the majority) mean that the Board
can or should treat its precedent as perishable. Indeed, in Wagner Iron
Works, supra, the Board observed that the “terms of [the Board’s]
members were arranged by Congress in a manner to prevent any abrupt
dislocation in the discharge of its functions.” 108 NLRB at 1239.
Today’s decision, of course, represents just such an “abrupt disloca-
tion” of recent precedent.
7 Reviewing courts will reject a legal rule adopted by the Board
where it is irrational or where the Board’s explication of the rule is
“inadequate, irrational or arbitrary.” NLRB v. Kentucky River Commu-
nity Care, Inc., 532 U.S. 796, 721 (2001), quoting Allentown Mack
Sales & Service, Inc. v. NLRB, 522 U.S., 359, 364 (1998). This strikes
me as such a case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
The majority’s argument essentially boils down to the
fact that Postal Service should not be treated as precedent
because it was “issued barely more than one year ago”
and because the Board there overruled precedent. But as
the Postal Service Board explained, its holding returned
Board law to the standard adopted in Electronic Workers
IUE, Local 201 (General Electric Co.), 188 NLRB 855,
857 (1971).8 The decisions overruled in Postal Ser-
vice—which applied the Independent Stave standard to
cases in which both the General Counsel and the charg-
ing party objected to the respondent’s proffered settle-
ment—reflect no consideration of the problem inherent
in treating cases in which there has been no settlement as
if such a settlement had been reached, invoking policies
that are not genuinely implicated. In sum, Postal Service
adopted a fully rationalized approach to an area where
the Board’s existing standard had never been persuasive-
ly explained (and could not be).
B.
But perhaps even more concerning than the majority’s
overreach in overruling Postal Service is the fact that
acceptance of the Respondent’s offer here is manifestly
inappropriate regardless of which standard one chooses
to apply. None of the policy goals that the Board has
previously pursued by application of either Independent
Stave or Postal Service are, or can conceivably be,
achieved in this case.
Certainly, this outcome does not support the Board’s
preference for private resolution of disputes. There has
been no agreed-upon resolution of the case whatsoever
and so the policies favoring settlement underlying Inde-
pendent Stave are not implicated at all. The General
Counsel and the Charging Party have determined that
their interests are best served by litigating the single-
employer issue; the underlying dispute that led to the
proceeding, meanwhile, remains very much alive.
The majority’s outcome also does not support—and,
indeed, is likely to undermine—the Board’s interest in

8 While the majority disputes whether the General Electric Board
was purporting to establish a broadly applicable rule to say it would
only approve consent settlement agreements that provide a full remedy,
the Board in General Electric adopted the Trial Examiner’s recommen-
dation that the proposed consent order be adopted, and in so doing
recited the Trial Examiner’s findings. The Trial Examiner noted that he
was approving the order on the grounds that the order “provide[s] a full
remedy with respect to all aspects of the . . . violations alleged in the
complaint . . . to which the General Counsel and Charging Party are
entitled to under current Board law, and that it also will protect the
public interest and effectuate the purposes and policies of the Act.”
188 NLRB at 857 (emphasis added). Thus, the Trial Examiner’s order
suggests, contrary to the majority’s suggestion, that a full remedy—as
the Board recognized in Postal Service—is the minimum required to
approve unilateral settlement proposals.
administrative economy and avoiding unnecessary litiga-
tion. UPMC’s proffered “guarantee” finally resolves
nothing. The “guarantee” applies if, but only if, a Board
order imposing liability on Presbyterian Shadyside is
enforced by a federal court of appeals. (As UPMC told
the judge, the guarantee is subject to “the exceptions and
appeals process.”) In other words, the litigation contin-
ues—at the Board and on to the court of appeals—even
after the Board adopts the judge’s recommended order.
Should the Board adopt the judge’s findings against
Presbyterian Shadyside, UPMC is entirely free to assist
its subsidiary in challenging any Board remedial order
running against the subsidiary and in challenging any
subsequent order fixing liability in a separate compliance
proceeding. The Independent Stave framework, of
course, was designed for true settlements that finally
resolve all issues in a Board proceeding and that termi-
nate the case. The “guarantee” here is something quite
different: it is entirely contingent on the ultimate out-
come of the case against Presbyterian Shadyside. Even
under the Independent Stave test, the fact that a resolu-
tion proffered by a respondent “will not necessarily save
the parties from the time and expense of extensive litiga-
tion” is a powerful reason to reject it. Copper State Rub-
ber, 301 NLRB 138, 138 (1991), overruled on other
grounds in Postal Service, supra.
In addition, of course, the “guarantee” itself has
spawned litigation—this case. Notably, today’s order
itself is subject to judicial review at the Charging Party’s
behest.9 Should a court of appeals find that the Board
erred in accepting UPMC’s guarantee, the case would
return to the Board and the single-employer issue would
have to be litigated (absent a true settlement)—after a
long and unwarranted delay. As his decision makes
clear, the administrative law judge accepted UPMC’s
“guarantee” because—thanks in no small part to
UPMC’s tactics—litigation of the single-employer issue
promised to be time-consuming. But accepting the
“guarantee” only saved time for the judge in the proceed-
ing he was conducting. It hardly brought a final resolu-
tion to the single-employer issue.
The majority insists that this fact makes no difference,
because even the Board’s determination that UPMC and
Presbyterian Shadyside were a single employer would be
subject to judicial review. But this claim misses the
point. Here, the General Counsel (and the Charging Par-
ty) oppose accepting UPMC’s “guarantee” and ask the
Board instead to permit litigation and to adjudicate the
single-employer issue. That process is the rule, not the
exception—and so the burden should be on UPMC (and

9 See, e.g., Bloom v. NLRB, 30 F.3d 1001 (8th Cir. 1994).
UPMC 21
the majority) to demonstrate why accepting the “guaran-
tee” is necessary. The fundamental premise of Inde-
pendent Stave, of course, is that the consensual termina-
tion of a proceeding before the Board is generally desira-
ble if it produces finality. Here there is neither consent,
nor finality. Indeed, the majority’s criticism of my view
on this issue implicitly concedes the point that its own
approach is no more expedient than the resolution of this
case through normal Board processes. By asserting that
both approaches could involve subsequent litigation, it
undermines its argument that its approach can be justi-
fied by administrative economy.
And if this were not enough to give the Board pause,
there is the matter of the terms of the “guarantee,” as
embodied in the Order adopted today, which seems like-
ly to generate litigation on its own. UPMC has never
proposed an actual Board order itself. It challenged the
order recommended by the administrative law judge.
And now the Board modifies the recommended order in
two respects: (1) by agreeing with UPMC that the “offic-
ers, agents, successors, and assigns” language must be
deleted, because “it was not included in UPMC’s offer;”
and (2) by reciting that UPMC must provide the reme-
dies ordered against Shadyside if Shadyside “fails” to do
so—in contrast to the recommended Order, under which
UPMC must act only if Shadyside “is unable to do so.”
As to the first modification, the majority insists that is
immaterial, because even without the language objected
to by UPMC, the Board’s Order still would bind “its of-
ficers, agents, successors, and assigns.” But there is no
certainty about that. For one thing, in a compliance pro-
ceeding UPMC or its “officers, agents, successors, and
assigns” might argue that the absence of order language
specifically reaching the latter individuals and entities
forecloses the Board from seeking compliance by them,
notwithstanding the majority’s unsupported assurances to
the contrary. After all, it is the Board’s order, not the
reasoning in its decision, which drives the compliance
process. See Sec. 10596 of the Compliance Manual
(Procedures To Follow Upon Issuance of Board Order:
The Compliance Officer should initiate compliance ac-
tion with its remedial provisions as soon as a Board order
issues by: Providing respondent with a copy of the
Board’s order and requesting, in writing, that respondent
begin to take steps to comply with the Board’s order.)
(emphasis added). Further, in the event a Board order
finding violations of the Act is appealed to and enforced
by a federal appellate court (and UPMC’s express re-
striction of its guarantee to those violations “which sur-
vive the exceptions and appeals process” plainly sug-
gests that voluntary compliance with the Board’s ulti-
mate order would be unlikely), those individuals and
entities might reasonably argue that any attempt by the
Board to pursue them would be tantamount to an imper-
missible post-enforcement modification of the order.10
But even putting aside those potential roadblocks, it is
far from clear that there would be anything automatic
about imposing liability on UPMC’s “officers, agents,
successors, and assigns.” In Regal Knitwear Co. v.
NLRB, 324 U.S. 9 (1945), the Supreme Court considered
the enforceability of the Board’s standard successors and
assigns language, concluding that it could be justified,
but that the Court would “not undertake to decide wheth-
er or under what circumstances any kind of successor or
assign will be liable for violation of a Labor Board order.
. . . (W)hether one brings himself in contempt as a ‘suc-
cessor or assign’ depends on an appraisal of his relations
and behavior and not upon mere construction of terms of
the order.” Id. at 14–15. The Court affirmed this ap-
proach in Golden State Bottling Co., Inc. v. NLRB, 414
U.S. 168 (1973), recognizing that Rule 65(d)11 of the
Federal Rules of Civil Procedure was “not a bar to judi-
cial enforcement of the Board order entered against the
bona fide successor in this case” but then considering
whether the Board acted within its discretion by issuing
the order against such a party, “striking a balance be-
tween the legitimate interests of the bona fide successor,
the public, and the affected employee.” Id. at 179, 181.
In these cases, the Court seemed to signal that, far from
broadly applying or inferring a “successors and assigns”
clause, it would instead be cautious about the application
of such language to entities that the Board seeks to hold
liable.
Yet even if we are to assume the majority is correct
that UPMC’s successors and assigns still would be bound
even absent express order language reaching those enti-
ties, it then makes no sense for the Board to delete such
language at UPMC’s urging. If, as the majority says,
UPMC’s successors and assigns would be bound in any
event, there is no point in removing that language.
UPMC obviously thought it important to insist on the
removal of that language. Indeed, one must assume that,
because the majority’s statement about the Order’s effect
is contrary to UPMC’s view, it might well trigger a chal-
lenge by UPMC to the order that the majority insists was
agreed to by UPMC on one or more of the grounds
above.

10 See Scepter, Inc. v. NLRB, 448 F.3d 388, 391 (D.C. Cir. 2006)
(“The Board obviously cannot modify an order . . . that the court has
enforced in a final judgment.”); NLRB v. Gimrock Construction, Inc.,
695 F.3d 1188, 1192-1193 (11th Cir. 2012) (same); Interstate Bakeries
Corp., 360 NLRB 112, 112 fn. 4 (2014).
11 This rule concerns which entities may be bound by an order.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
As to the second modification, it alters a provision in
the judge’s recommended order to which UPMC never
objected. The majority asserts that its modification—
clearly a material change that strengthens the “guaran-
tee”12—“better reflect[s] UPMC’s guarantee.” But
UPMC has never consented to this modification and pre-
sumably might choose to challenge it as well. Moreover,
this sua sponte alteration places the Board in the position
akin to a party in the litigation, able to respond to pro-
posed language and present counter-offers until a legally
acceptable document is crafted. This strays far from the
Board’s recognized role as a neutral arbitrator. By doing
so, the majority has encouraged parties to bargain with
the Board rather than each other to settle their disputes.
The majority does not dispute this observation, raising
the question whether this is, in fact, their desired out-
come.
In short, accepting UPMC’s “guarantee” achieves very
little with respect to effectuating either the Board’s inter-
est in private settlement or the central purpose of the Act:
remedying unfair labor practices promptly, before labor
disputes become even more disruptive.13 This is espe-
cially so considering that the “guarantee” could have
collateral consequences in any contemporaneous case
where UPMC’s relationship with Presbyterian Shadyside
is or will be at issue. That is, inasmuch as the General
Counsel here is prevented from seeking, and potentially
securing, a single-employer finding, he would be re-
quired to try again in some other case—and potentially
be confronted with a proffered “guarantee” again. In
theory, under today’s decision, any respondent confront-
ed with a single-employer allegation will always have the
option to proffer a manifestly inadequate “guarantee”
like the one endorsed by the Board today—and thus
might perennially avoid a single-employer finding, no
matter the evidence and regardless of the General Coun-
sel’s determination that pursuing such a finding would
effectuate the purposes of the Act.
III.
It should be clear, then, why both the General Counsel
and the Charging Party have opposed UPMC’s “guaran-
tee.” Of course, if either party had reached a true settle-
ment with UPMC on the same terms, this would be a

12 Under the language of the judge’s recommended order, the Gen-
eral Counsel would have been required to prove that Shadyside was
“unable” to comply with the Board’s order—perhaps because it was
defunct or bankrupt—before UPMC’s remedial obligations could be
triggered. It is no wonder that UPMC had no objection to this lan-
guage.
13 As the Board observed in Independent Stave, the “early restora-
tion of industrial peace . . . is a fundamental aim of the Act.” 287
NLRB at 743.
different case, and it would be proper to analyze it using
the Independent Stave factors. And it could be, assuming
that they were offered a settlement by UPMC, the Gen-
eral Counsel and the Charging Party made a mistake in
turning it down, given the risks of litigation. But that
decision should be theirs to make, at least in circum-
stances where, as here, a respondent’s offer falls short of
a complete remedy. (If the remedy were complete, then
adjudicating the case would truly be a waste of time and
resources).
Put somewhat differently, the Board should assume
that the General Counsel and the Charging Party are ra-
tional actors. And it should be extremely reluctant—
where no true settlement is involved—to abandon its role
as an adjudicator, in favor of acting as a sort of super
prosecutor ready to shape a deal with a respondent. In
cutting off the General Counsel’s path to the Board, to-
day’s decision seems to open a new path for respondents
who wish to bargain directly with the Board itself. The
majority’s difficulty in crafting an Order that actually
reflects what UPMC, alone, has consented to illustrates
the pitfalls of this practice. Except in unusual circum-
stances, the Board should decide the cases brought to it,
not settle them itself. The circumstances here do not
justify a departure from the Board’s normal role as an
adjudicative body. Accordingly, I dissent.
Dated, Washington, D.C. December 11, 2017
______________________________________
Lauren McFerran, Member
NATIONAL LABOR RELATIONS BOARD
Julie Stern Esq., for the General Counsel.
Thomas Smock, Esq., for the Respondent UPMC.
Betty Grdina, Esq., for the Charging Party.1
SUPPLEMENTAL DECISION
MARK CARISSIMI, Administrative Law Judge. On January 9,
2014, pursuant to charges filed by SEIU Health care Pennsyl-
vania, CTW, CLC (the Union) the General Counsel issued, a
second order further consolidating cases and amended consoli-
dated complaint (the complaint) alleging that Respondent
UPMC (UPMC) and Respondent UPMC Presbyteri-
anShadyside (Presbyterian Shadyside) constitute a single em-
ployer and that Presbyterian Shadyside committed various vio-
lations of Section 8 (a)(4), (3), (2), and (1) of the Act. Thereaf-

1 While the briefs filed by the Respondent and the Charging Party
Union regarding Respondent UPMC’s motion seeking dismissal of the
complaint allegations alleging that it is a single employer with Re-
spondent Presbyterian Shadyside list the names of several attorneys, I
have listed only the attorneys who signed the briefs.
UPMC 23
ter, both Respondents filed with the Board a motion to dismiss
the complaint allegation that UPMC and Presbyterian
Shadyside constitute a single employer. On February 7, 2014,
the Board issued an order denying the Respondents’ motion.
Thereafter, on February 12, 2014, I opened a hearing that was
conducted for 19 days during February, March, and April 2014.
I issued an order on the record on April 3, 2014, severing the
single employer allegations from the merits of the complaint. I
determined it was appropriate under the circumstances to first
issue a decision regarding the alleged unfair labor practices
committed by Presbyterian Shadyside and later issue a supple-
mental decision regarding the issue of whether UPMC and
Presbyterian Shadyside constitute a single employer. My reason
for bifurcating the proceeding was that I did not want ongoing
subpoena enforcement proceedings regarding the single em-
ployer issue to delay my resolution of the substantive unfair
labor practice issues in the complaint.2 On November 14, 2014,
I issued a decision in this case (JD-62-14) in which I found that
Presbyterian Shadyside committed various unfair labor practic-
es. That case is presently pending before the Board pursuant to
exceptions filed by all parties.
On June 4, 2015, UPMC filed with me a “Partial Motion to
Dismiss” the complaint allegations that it constitutes a single
employer with Presbyterian Shadyside and that it be dismissed
as a party.3 The General Counsel and the Union filed opposi-
tions to the partial motion to dismiss filed by UPMC. Thereaf-
ter, with my permission, UPMC filed a reply to the oppositions
filed by the General Counsel and the Union, and the General
Counsel filed a response to the reply filed by UPMC. The
briefs contained various attachments which the parties rely on
in support of their respective positions. Since I find the briefs
and the attachments to constitute a sufficient basis to issue a
supplemental decision in this matter without further hearing, I
order that the record be reopened for the limited purpose of
receiving the briefs and attachments filed by the parties.
In its brief in support of its motion, UPMC requests that it be
dismissed as a party in this matter and “that the severed single
employer allegations of this matter also be resolved on the basis
that Respondent UPMC shall guarantee the performance by
Presbyterian Shadyside of any remedial aspects of the Decision

2 On February 24, 2014, I denied, in substantial part, petitions to re-
voke the subpoenas duces tecum that the General Counsel had served
on UPMC and Presbyterian Shadyside, respectively, and a subpoena
duces tecum that the Union had served on UPMC. Consequently, I
ordered both the Respondents to produce documents pursuant to the
subpoenas. Thereafter, the Respondents indicated they would not com-
ply with my order. On March 24, 2014, on behalf of the Board, the
General Counsel filed an application to enforce all three subpoenas in
United States District Court for the Western District of Pennsylvania.
On August 22, 2014, the district court issued an order granting the
Board's application for enforcement of all three subpoenas, which it
amended on September 2, 2014. The district court stayed its order
pending an appeal by the Respondents. Thereafter, the Respondents
appealed the district court's order to the Third Circuit Court of Appeals,
where the matter is presently pending.
3 Since the record has opened in this case and the single employer
issue remains pending before me, I have jurisdiction to rule on the
partial motion to dismiss. Secs. 102.35(a)(8) and 102.24(a) of the
Board’s Rules and Regulations.
and Order which survive the exceptions and appeal process.”
(UPMC br. at 5.) In UPMC’s reply brief it repeats this offer by
stating “UPMC has indicated that it guarantees the performance
by Presbyterian Shadyside of any remedial aspects of the Ad-
ministrative Law Judge’s Decision and Order which survive the
exceptions and appeal process. As such, UPMC would be re-
sponsible for any remedy along with Presbyterian Shadyside.”
(UPMC reply at 2.) In its motion, however, UPMC does not
stipulate that it is a single employer with Presbyterian
Shadyside.
In opposing UPMC’s motion to dismiss the single employer
allegations of the complaint, the General Counsel contends,
inter alia, that because the evidence regarding the single em-
ployer issue has not been presented, there is no factual basis to
evaluate the appropriateness of UPMC’s guarantee that it will
ensure that Presbyterian Shadyside complies with any order
ultimately issued by the Board. The General Counsel also as-
serts that UPMC’s offer to guarantee compliance with any re-
medial order that may ultimately be issued in this case is inef-
fective because it is made in the context of seeking to be dis-
missed as a party from this proceeding. The General Counsel
further contends that a finding that UPMC and Presbyterian
Shadyside constitute a single employer and are thus jointly and
severally liable for the unfair labor practices committed is nec-
essary in order to properly effectuate the policies of the Act.
The Union argues, inter alia, that there is an insufficient ba-
sis to accept UPMC’s offer to guarantee compliance with the
remedy for violations that the Board finds that Presbyterian
Shadyside committed. The Union contends, in this regard, that
no guarantee has been attached to UPMC’s motion.4 The Un-
ion further argues that dismissing the single employer allega-
tion would be contrary to the law of case as, prior to the open-
ing of the hearing, the Board issued an order denying a motion
filed by UPMC in which it sought dismissal of the amendments
to the complaint alleging it to be a single employer with Pres-
byterian Shadyside. The Union further argues that a finding that
UPMC and Presbyterian Shadyside constitute a single employer
is necessary to achieve complete remedial relief in this matter.
Attached to the Union’s opposition is a stipulation that the
General Counsel, the Union, and Respondents UPMC, UPMC
Presbyterian Shadyside, and Magee-Women’s Hospital of
UPMC entered into in Case 06–CA–0818965 (U. Exh. A) that
sets forth basic information regarding the relationship between
UPMC and Presbyterian Shadyside. According to the parties’
stipulation, UPMC is a holding company that owns various
subsidiaries which operate 20 hospitals in Pennsylvania, with
the majority of them located in the Pittsburgh, Pennsylvania
area. UPMC, through its various subsidiaries, also operates

4 The offer made in UPMC’s motion is, of course, binding on it.
The Board has long held that statements made by counsel in the man-
agement of litigation are binding upon a party. Performance Friction
Corp., 335 NLRB 1117, 1149 (2001); Florida Steel Corp., 235 NLRB
1010, 1011–1012 (1978). Accordingly, I find no merit in the Union's
contention regarding this issue.
5 Part of this case was settled and the remaining part was litigated
before an administrative law judge. A decision issued on April 19,
2013 (JD-28-13), which is presently pending before the Board on ex-
ceptions.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
over 400 clinical locations in Western Pennsylvania. UPMC,
through its various subsidiaries, has over 55,000 employees.
Presbyterian Shadyside is a subsidiary of UPMC and employs
more than 9500 employees.
Having duly considered the positions of the parties I have
determined that it would not effectuate the policies of to further
litigate the issue and make a determination regarding whether
UPMC and Presbyterian Shadyside constitute a single employ-
er. I construe UPMC’s willingness to serve as the guarantor of
any remedy that ultimately may be issued by the Board in this
case as consent that it undertake such action pursuant to a
Board order. Accordingly, I have concluded that it is appropri-
ate to dismiss the allegations in the complaint that UPMC and
Presbyterian Shadyside constitute a single employer but, based
on its asserted willingness to do so, order UPMC to ensure that
Presbyterian Shadyside complies with any remedy that may be
ordered by the Board in this case. I believe that this approach
eliminates what I now believe to be unnecessary litigation over
the single employer issue and addresses the concern of the
General Counsel and the Union regarding the manner in which
UPMC’s guarantee will be enforced.
The Board has long recognized that under certain circum-
stances it does not effectuate the policies of the Act to find that
a violation of the Act has occurred and issue a remedial order.
Bellinger Shipyards, 227 NLRB 620 (1976); Wichita Eagle &
Beacon Publishing Co., 206 NLRB 55 (1973); Square D Co.
204 NLRB 154 (1973); American Federation of Musicians,
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973); Ken-
tile Inc., 145 NLRB 135 (1963); Fabrica De Muebles Puerto
Rico, 107 NLRB 905 (1954). Although the circumstances in
those cases differ from the instant one in that none of them
involved a single employer allegation, the similarity is that the
allegedly unlawful conduct that occurred in those cases had
been substantially remedied by later conduct.
In the instant case, as noted above, 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 com-
mitted 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 inde-
pendently 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 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 rem-
edies 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.
To agree with the oppositions filed by the General Counsel
and the Union, would result in the dismissal of the Respond-
ent’s motion and the continued litigation of the issue of whether
UPMC and Presbyterian Shadyside constitute a single employ-
er. At present, the single employer allegation in the complaint
is being held in abeyance because a subpoena enforcement
proceeding involving documents relevant to this question is
pending in the Third Circuit. If the General Counsel prevails in
all or part of the subpoena enforcement proceeding, UPMC and
Presbyterian Shadyside would be required to produce relevant
documents for inspection by the General Counsel and the Un-
ion. After that review, the General Counsel would file a motion
with me seeking to resume the hearing on the single employer
allegation.6 After scheduling hearing dates, the litigation of the
single employer issue would resume. Based on my knowledge
of this case I estimate that such a hearing would last 4 to 5
days. After the filing of briefs I would, of course, issue a deci-
sion regarding the merits of the allegation that UPMC and
Presbyterian Shadyside constitute a single employer. If I should
find that UPMC and Presbyterian Shadyside, in fact, constitute
a single employer, I would further find, consistent with Board
law, that they are jointly and severally liable for the violations
of the Act found in the underlying unfair labor practice case.
Naperville Jeep/Dodge, 357 NLRB 2252, 2253 fn. 5 (2012);
Emsing’s Supermarket, Inc., 284 NLRB 302 (1987). If I should
conclude that UPMC and Presbyterian Shadyside do not consti-
tute a single employer I would dismiss the single employer
allegation from the complaint and consequently UPMC would
no longer be a party to the case. Of course, any decision that I
would issue would be subject to appeal to the Board thus en-
gendering further litigation of the single employer issue.
Accepting UPMC’s offer to serve as a guarantor of any rem-
edy that the Board may ultimately order against Presbyterian
Shadyside and providing that UPMC do so pursuant to an or-
der, 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. The great benefit to this approach is that this addi-
tional safeguard to ensure that employees ultimately achieve a
full remedy in this case is obtained without the time consuming
and expensive course of litigating the single employer issue to
its conclusion. This benefit is also obtained without the risk that
further litigation of the single employer issue may result in a
finding that UPMC and Presbyterian Shadyside are not, in fact,
a single employer. If such a conclusion were to be reached,
UPMC would have no liability for the unfair labor practices
committed by Presbyterian Shadyside.
As indicated above, the approach I have outlined above ad-
dresses the concerns of the General Counsel and the Union
regarding the manner in which UPMC’s guarantee that Presby-

6 It is, of course, possible that the circuit court will not affirm the
district court's order requiring the Respondent to produce documents
pursuant to the subpoenas. Since the General Counsel issued a com-
plaint alleging that UPMC and Presbyterian Shadyside constitute a
single employer without the subpoenaed documents, I presume that,
even in this scenario, the General Counsel would wish to continue to
litigate the single employer issue.
UPMC 25
terian Shadyside will comply with any final Board order will be
enforced, if necessary.
I do not find persuasive any of the other reasons advanced by
the General Counsel and the Union as to why I should not ac-
cept UPMC’s offer to guarantee compliance with any remedy
ordered and resolve the single employer allegations on that
basis.
As noted above, the Union claims that the Board’s February
7, 2014 Order denying UPMC’s motion to dismiss it as a Re-
spondent is the established law of the case and compels the
denial of UPMC’s instant partial motion to dismiss. In its mo-
tion filed with the Board before the commencement of the hear-
ing in this case, UPMC asserted, inter alia, that with respect to
the amended consolidated complaint which issued on January
9, 2014, alleging that UPMC and UPMC Presbyterian
Shadyside constitute a single employer, there were no substan-
tive allegations involving UPMC, there was no complaint alle-
gation alleging that UPMC Presbyterian Shadyside could not
fully remedy any violation found, and that litigating the single
employer issue would take time and expense, and waste the
resources of all parties without furthering the purposes of the
Act. The Board’s order indicated “The Respondents’ Motion to
Dismiss Amendments to the consolidated complaint is denied.
The Respondents have failed to establish that the amendments
are improper and that they are entitled to judgment as a matter
of law.” Clearly, the instant motion presents changed circum-
stances from those that UPMC relied on in filing its motion to
dismiss with the Board. In the instant motion, UPMC seeks to
dismiss the single employer allegation in the complaint on the
basis that it is willing to serve as a guarantor and ensure that
any remedy that the Board orders with respect to unfair labor
practices committed by Presbyterian Shadyside are complied
with. In filing its motion with the Board, UPMC did not make
such an argument and accordingly the Board did not to consider
it. In Teamsters Local 75 (Schreiber Foods), 349 NLRB 77
(2007), a case relied on by the Union in support of its position,
the Board specifically indicated that changed circumstances
may warrant departing from an initial order. Id. at 80. Accord-
ingly, because of these changed circumstances that have oc-
curred since the time of the Board’s order of February 7, 2014,
I do not find that order requires dismissal of the instant motion.
I further disagree with the Union’s contention that in the pre-
sent posture of this case the General Counsel possesses unre-
viewable discretion regarding the disposition of the single alle-
gation in the complaint. In support of its position, the Union
relies on Sheet Metal Workers, Local 28 (American Elgen), 306
NLRB 981 (1992). This case is factually inapposite because it
involves the General Counsel’s discretion to withdraw (empha-
sis supplied) a complaint after a hearing has opened but before
any evidence has been introduced, when there is “no contention
that a legal issue is ripe for adjudication on the parties’ plead-
ings alone.” Id. at 981. The instant case, of course, involves
whether it is appropriate to dismiss (emphasis supplied) the
single employer allegation of the complaint at this juncture
based on a conclusion that further litigation of that issue would
not effectuate the policies of the Act. In that context, I find that
the Board’s decision in Sheet Metal Workers, Local 28, supra,
does offer some guidance on this issue. There, the Board indi-
cated:
At some point, however, a complaint may be said to have ad-
vanced so far into the adjudicatory process that a dismissal
takes on the character of adjudication, and at that point the
General Counsel no longer possesses unreviewable discretion
in the matter. Thus, the Board has held that “where . . . rele-
vant evidence has been adduced at a hearing, the General
Counsel no longer retains absolute control over the complaint;
and a subsequent motion to dismiss the complaint or any por-
tion thereof is within the [administrative law judge’s] discre-
tionary authority.” Id. at 982. (citations omitted)
The adjudication of the complaint in this case has progressed
to the point that 19 days of hearing have been held and I have
issued a decision on the substantive unfair labor practice allega-
tions of the complaint. While not all of the evidence regarding
the single employer allegation has been introduced, I find that
the litigation has progressed to the point that UPMC’s motion
to resolve the single employer allegation on the basis of its
offer to guarantee the remedy is appropriately within my au-
thority to decide.
I find Cincinnati Enquirer, 298 NLRB 275 (1990), another
case relied on by the Union, to be distinguishable from the
instant matter. In that case, in a preliminary ruling, the adminis-
trative law judge concluded that a regional director was “with-
out authority” to issue a complaint alleging a particular viola-
tion of Section 8(a)(5). The Board indicated the judge’s state-
ment was erroneous because the contents and issuance of a
complaint are matters solely within the prosecutorial authority
of the General Counsel. In the instant case, I recognize the
General Counsel’s unreviewable discretion to issue the single
employer allegation of the complaint. I find, however, for the
reasons that I set forth herein, that it does not effectuate the
policies of the Act to continue the litigation on this issue, given
UPMC’s offer to guarantee compliance with any remedy or-
dered by the Board in this case, and therefore I shall dismiss
that allegation of the complaint.
I also do not agree with the Union’s argument that the
Board’s decision in Three Sisters Sportswear, 312 NLRB 853
(1993), supports the necessity of proceeding with the trial of the
single employer allegations in order to achieve an appropriate
remedy in this case.
Three Sisters involved a long and complex history of litiga-
tion. In summary, in a prior case, Southland Knitwear, Inc., 260
NLRB 642 (1982), the Board found that Southland and Metro-
politan, as a single integrated enterprise, committed violations
of Section 8(a)(3), (2), and (1) including the discriminatory
layoff of 83 employees. After the Board’s decision, Southland
and Metropolitan purportedly closed its operations in mid-
September 1983. Thereafter, the General Counsel received
information that those entities were still operating, but under
the following names: Three Sisters Sportswear Co.; Three Sis-
ters Apparel Corp.; Bedford Cutting Mills Co.; Metropolitan
Sweater Industries, Inc.; United Knitwear Industries, Inc.;
United Knitwear Industries, Ltd.; and Skylight Fashions, Inc.
d/b/a Skylight Trading. Consequently, in June 1989, the Gen-
eral Counsel issued a backpay specification claiming that all of
the above-named corporations were a single employer and alter
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
ego with Southland and Metropolitan and that all of those cor-
porations were jointly and severally liable for back pay owed
under the Board’s order in Southland Knitwear Inc. In addition,
in June 1991, the General Counsel issued a new complaint
against the above-named corporations and 144 Spencer Realty
Corp. (Spencer), alleging that all of these corporations were a
single employer and had committed additional various viola-
tions of Section 8(a)(4), (3), and (1).
In March 1992, the parties entered into a stipulation in the
compliance case providing that all of the named respondents
named in the backpay specification and Spencer were jointly
and severally liable for the full amount of the backpay owned
by Southland and Metropolitan pursuant to the Board’s order in
Southland Knitwear Inc. The stipulation did not contain an
admission that the corporations were a single employer or alter
egos to each other or to Southland or Metropolitan.
In the unfair labor practice proceeding on the new complaint
in Three Sisters Sportswear, the administrative law judge re-
jected a contention made by the respondents that the single
employer issue should also not be decided during the unfair
labor practice proceeding but should be deferred, if necessary,
to a compliance proceeding in that case. In so finding, the
judge noted that the relationship between the companies had
already been extensively litigated at the hearing and that post-
poning a decision on the issue would require duplication of
such litigation in the event that the respondents did not comply
with the decision in the unfair labor practice proceeding. In
addition, the judge decided that the connection between the
named respondents and Southland and Metropolitan must be
decided in order to determine the propriety of special remedies
requested by the union. 312 NLRB at 857. In reaching this
conclusion, the judge noted that the owners of Southland and
Metropolitan carried out their unlawful threat to close the facili-
ty, but then reopened again under the new corporate names set
forth above in order to avoid their responsibilities under the
Act. Id. at 862.
I find the circumstances in Three Sisters to be quite different
from those that exist in the instant case and thus find it to be
distinguishable. In the first instance, in Three Sisters, the evi-
dence regarding the complicated relationship between the vari-
ous companies had already been presented at the unfair labor
practice hearing. In addition, Three Sisters involved a situation
where the owners of a relatively small facility with approxi-
mately 150 employees engaged in egregious violations of the
Act and then attempted to evade their obligations to remedy
that conduct by purportedly closing the facility and then reo-
pening and operating it under a variety of corporate names.
Thus, the case involved a history presenting the possibility of
remedial failure.
In the instant case, the evidence regarding whether UPMC
and Presbyterian Shadyside constitute a single employer has yet
to be fully presented and accepting the proposal of UPMC
avoids such expensive and time-consuming litigation. Both
Presbyterian Shadyside and UPMC are substantial entities.
Presbyterian Shadyside employs approximately 9500 employ-
ees and UPMC, through its subsidiaries, has approximately
55,000 employees. There is no evidence to suggest that there is
a real possibility that Presbyterian Shadyside would be unable
to effectuate any remedies ordered by the Board. Despite that,
in order to avoid litigation of the single employer issue, UPMC
is willing to guarantee that its subsidiary, Presbyterian
Shadyside, will comply with any remedies ordered by the
Board. Accordingly, I do not find that the Board’s decision in
Three Sisters supports the necessity of proceeding to further
litigate the single employer issue in this case.
On the basis of the foregoing, I have concluded that it is ap-
propriate to accept the proposal of UPMC that it be the guaran-
tor of any remedy that the Board may order in the original deci-
sion in this case (JD-62-14) and I will issue an order requiring
it to do so. On that basis, I have determined that it would not
effectuate the policies of the Act to continue to continue to
litigate the complaint allegation that UPMC and Presbyterian
Shadyside constitute a single employer and I therefore dismiss
that allegation in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended7
ORDER
The Respondent, UPMC, its officers, agents, successors, and
assigns, shall be the guarantor of any remedies that the Board
may order in the original decision in this case (JD-62-14). As
the guarantor, Respondent UPMC must ensure that Respondent
UPMC Presbyterian Shadyside takes all steps necessary to
comply with any remedies that may be contained in the Board’s
Order, including providing for any such remedies itself, if
UPMC Presbyterian Shadyside is unable to do so.
IT IS FURTHER ORDERED that the allegation in the complaint
that Respondent UPMC and Respondent UPMC Presbyterian
Shadyside constitute a single employer is dismissed as, under
the circumstances, it would not effectuate the policies of the
Act to continue to litigate and reach a decision regarding that
allegation.
Dated, Washington, D.C., July 31, 2015.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.