Rush University Medical Center

National Labor Relations Board - Board Decisions

Feb 27, 2015

362 NLRB No. 23 (N.L.R.B. 2015)

362 NLRB No. 23
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.
Rush University Medical Center and Healthcare Pro-
fessional, Technical, Office, Warehouse, Mail
Order, Employees Union, Local 743, IBT. Case
13–CA–139088
February 27, 2015
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA, AND JOHNSON
This is a refusal-to-bargain case in which the Re-
spondent is contesting the Union’s certification as bar-
gaining representative in the underlying representation
proceeding. Pursuant to a charge filed by Healthcare
Professional, Technical, Office, Warehouse, Mail Order,
Employees Union, Local 743, IBT (the Union) on Octo-
ber 17, 2014, the General Counsel issued the complaint
on October 29, 2014, alleging that Rush University Med-
ical Center (the Respondent) has violated Section 8(a)(5)
and (1) of the Act by refusing the Union’s request to bar-
gain following the Union’s certification in Case 13–RC–
132042. (Official notice is taken of the record in the
representation proceeding as defined in the Board’s
Rules and Regulations, Secs. 102.68 and 102.69(g).
Frontier Hotel, 265 NLRB 343 (1982).) The Respondent
filed an answer, admitting in part and denying in part the
allegations of the complaint, and asserting certain affirm-
ative defenses.
On November 25, 2014, the General Counsel filed a
Motion for Summary Judgment. On January 7, 2015, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed an opposi-
tion and a supplement to its opposition.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the Union’s certification on the basis
of its arguments, raised and rejected in the representation
proceeding, that the amended certification is inconsistent
with the Board’s Health Care Rule, Section 103.30 of the
Board’s Rules and Regulations, concerning appropriate
units in acute health care facilities; that an amended certi-
fication should include the largest possible grouping of
nonprofessional employees and at a minimum the nurse
assistant II classification; and that the addition of a single
classification, patient care technician (PCT), will result
in a proliferation of units.1
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.2 We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a not-for-profit
corporation with an office and place of business in Chi-
cago, Illinois, has been engaged in the business of oper-
ating an acute care hospital.
During the calendar year preceding the issuance of the
complaint, a representative period, the Respondent has
derived gross revenues in excess of $250,000 from
providing acute care hospital services at its facility. In

1 In support of its position, the Respondent, in its supplemental op-
position to the General Counsel’s motion, relies in part on three addi-
tional representation petitions filed by the Union that seek to include 10
additional classifications to the unit at issue in this proceeding. The
Respondent contends that these petitions confirm that the amended
certification was improvidently issued.
2 To the extent that the Respondent requests the Board to treat the
three additional representation petitions referred to in footnote 1 as
newly discovered and previously unavailable evidence under Sec.
102.48 for purposes of the representation proceeding, we deny the
Respondent’s request. To qualify as newly discovered evidence in this
context, such evidence (1) must have been capable of being presented
at the original hearing and (2) could not have been discovered by rea-
sonable diligence. Manhattan Center Studios, 357 NLRB No. 139
(2011); see also University of Rio Grande, 325 NLRB 642, 642 (1998)
(posthearing ruling by the Internal Revenue Service not newly discov-
ered evidence). Because the petitions at issue, which were filed on
December 23 and 24, 2014, did not exist either at the time of the hear-
ing or before the issuance of the Board’s Order denying review of the
Acting Regional Director’s Decision and Direction of Election in this
proceeding, they do not constitute newly discovered evidence. APL
Logistics, 341 NLRB 994, 994 fn. 2 (2004), enfd. 142 Fed.Appx. 869
(6th Cir. 2005).
3 In the underlying representation proceeding, Members Miscimarra
and Johnson stated that they would have granted review for the purpose
of reviewing St. Vincent Charity Medical Center, 357 NLRB No. 79
(2011). However, in the absence of a three-member majority to recon-
sider that case, they agreed to deny review. Accordingly, they agree
that the Respondent has not raised any new matters that are properly
litigable in this unfair labor practice proceeding, and that summary
judgment is appropriate.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
the same period, the Respondent purchased and received
goods and materials valued in excess of $5000 directly
from entities outside the State of Illinois for use at its
facility.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following a self-determination election on August 27
and 28, 2014, the Regional Director issued an amended
certification of representative certifying that the Union is
the exclusive collective-bargaining representative of the
patient care technicians as part of the existing unit of
nonprofessional employees it currently represents:4
Included: All full-time and regular part-time Patient
Care Technician (PCT) employees, environmental
aides, environmental specialists, environmental techni-
cians, dietary workers, laundry workers, transport spe-
cialists, elevator operators, maintenance employees,
central service technical assistants, nursing attendants,
psychiatric aides, community health aides, lab helpers,
operating room attendants, mail room clerks, unit
clerks, geriatric technicians, patient service associates
(PSAs), physical therapy aides, rehabilitation aides, pe-
diatric assistants, pediatric nursing assistants, certified
nursing assistants (CNAs), truck drivers (laundry &
SPD), food service assistant I lead, food service assis-
tant II lead, environmental specialist lead, transport
specialist lead, unit clerk lead, and journeymen lead
who are employed by Respondent at its main campus
currently located at 1653 West Congress Parkway,
Chicago, Illinois.
Excluded: Nurse Assistant II (NA II) employees, office
clerical employees, guards, professional employees,
and supervisors as defined in the Act, temporary and
casual employees, regular part-time employees normal-
ly working less than seventeen (17) hours per week,
and all other employees of the Hospital.
The Union continues to be the exclusive collective-
bargaining representative of the unit, including the employ-
ees in the voting group, under Section 9(a) of the Act.

4 The primarily nonprofessional unit is a preexisting nonconforming
unit under the Board’s Health Care Rule. See Sec. 103.30(a) and (c) of
the Board’s Rules and Regulations.
B. Refusal to Bargain
By letter dated October 14, 2014, the Union requested
that the Respondent meet to bargain collectively with it
as the exclusive collective-bargaining representative of
the patient care technicians, and since about October 17,
2014, the Respondent has failed and refused to do so.5
We find that this failure and refusal constitutes an un-
lawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since about October 17, 2014,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the patient care
technicians as part of the appropriate unit, the Respond-
ent has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1) and
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement.6
ORDER
The National Labor Relations Board orders that the
Respondent, Rush University Medical Center, Chicago,
Illinois, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with Healthcare
Professional, Technical, Office, Warehouse, Mail Order,
Employees Union, Local 743, IBT as the exclusive col-
lective-bargaining representative of the patient care tech-
nicians in the bargaining unit.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.

5 Although the complaint alleges that the Union requested that the
Respondent meet to bargain with it as the exclusive collective-
bargaining representative of the unit and that the Respondent refused, it
is clear from the record, and the Respondent admits in its answer, that
the Union requested bargaining over terms and conditions of employ-
ment that would apply to patient care technicians, and the Respondent
refused to do so.
6 The complaint and the General Counsel’s motion request that the
Board require the Respondent to bargain in good faith with the Union
as the exclusive representative of the unit for the period set forth in
Mar-Jac Poultry Co., 136 NLRB 785 (1962). Such a remedy, however,
is inappropriate where, as here, the underlying representation proceed-
ing involved a self-determination election. See Winkie Mfg. Co., 338
NLRB 787, 788 fn. 3 (2003), affd. 348 F.3d 254 (7th Cir. 2003); White
Cap, Inc., 323 NLRB 477, 478 fn. 3 (1997), and cases cited there.
RUSH UNIVERSITY MEDICAL CENTER 3
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive collective-bargaining representative of the patient
care technicians as part of the following appropriate unit
on terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
Included: All full-time and regular part-time Patient
Care Technician (PCT) employees, environmental
aides, environmental specialists, environmental techni-
cians, dietary workers, laundry workers, transport spe-
cialists, elevator operators, maintenance employees,
central service technical assistants, nursing attendants,
psychiatric aides, community health aides, lab helpers,
operating room attendants, mail room clerks, unit
clerks, geriatric technicians, patient service associates
(PSAs), physical therapy aides, rehabilitation aides, pe-
diatric assistants, pediatric nursing assistants, certified
nursing assistants (CNAs), truck drivers (laundry &
SPD), food service assistant I lead, food service assis-
tant II lead, environmental specialist lead, transport
specialist lead, unit clerk lead, and journeymen lead
who are employed by Respondent at its main campus
currently located at 1653 West Congress Parkway,
Chicago, Illinois.
Excluded: Nurse Assistant II (NA II) employees, office
clerical employees, guards, professional employees,
and supervisors as defined in the Act, temporary and
casual employees, regular part-time employees normal-
ly working less than seventeen (17) hours per week,
and all other employees of the Hospital.
(b) Within 14 days after service by the Region, post at
its facility in Chicago, Illinois, copies of the attached
notice marked “Appendix.”7 Copies of the notice, on
forms provided by the Regional Director for Region 13,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.

7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Re-
spondent at any time since October 17, 2014.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 13 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. February 27, 2015
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Harry I. Johnson, III, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Healthcare Professional, Technical, Office, Ware-
house, Mail Order, Employees Union, Local 743, IBT as
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
the exclusive collective-bargaining representative of the
patient care technicians in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for the patient care technicians
as part of the following bargaining unit:
Included: All full-time and regular part-time Patient
Care Technician (PCT) employees, environmental
aides, environmental specialists, environmental techni-
cians, dietary workers, laundry workers, transport spe-
cialists, elevator operators, maintenance employees,
central service technical assistants, nursing attendants,
psychiatric aides, community health aides, lab helpers,
operating room attendants, mail room clerks, unit
clerks, geriatric technicians, patient service associates
(PSAs), physical therapy aides, rehabilitation aides, pe-
diatric assistants, pediatric nursing assistants, certified
nursing assistants (CNAs), truck drivers (laundry &
SPD), food service assistant I lead, food service assis-
tant II lead, environmental specialist lead, transport
specialist lead, unit clerk lead, and journeymen lead
who are employed by Respondent at its main campus
currently located at 1653 West Congress Parkway,
Chicago, Illinois.
Excluded: Nurse Assistant II (NA II) employees, office
clerical employees, guards, professional employees,
and supervisors as defined in the Act, temporary and
casual employees, regular part-time employees normal-
ly working less than seventeen (17) hours per week,
and all other employees of the Hospital.
RUSH UNIVERSITY MEDICAL CENTER
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-139088 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.