Temple University Hospital

National Labor Relations Board - Board Decisions

May 11, 2018

366 NLRB No. 88 (N.L.R.B. 2018)

366 NLRB No. 88
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.
Temple University Hospital, Inc. and Temple Allied
Professionals, Pennsylvania Association of Staff
Nurses And Allied Professionals (PASNAP).
Case 04–CA–174336
May 11, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
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 and amended charge
filed on April 15 and April 25, 2016, respectively,1 by
Temple Allied Professionals/Pennsylvania Association of
Staff Nurses and Allied Professionals (the Union), the
General Counsel issued the complaint on January 19,
2018, alleging that Temple University Hospital, Inc. (the
Respondent) has violated Section 8(a)(5) and (1) of the
Act by refusing the Union’s request to recognize and
bargain with it following the Union’s certification in
Case 04–RC–162716.2 (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer, admitting in part and deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.

1 Although the Respondent in its answer denies knowledge regard-
ing portions of par. 1(a) and (b) of the complaint, alleging filing and
service of the charge and amended charge, the Respondent admits that
the charge and amended charge were filed on the alleged dates and that
they were served on the Respondent.
On January 17, 2018, the Acting Regional Director approved with-
drawal of the portion of the charge alleging that the Respondent refused
to provide information to the Union in violation of Sec. 8(a)(5) and (1)
of the Act.
2 By letter dated February 23, 2016, the Union referenced the certi-
fication and requested that the Respondent agree to schedule negotia-
tions. Although the Respondent’s answer denies the complaint’s alle-
gation that the Union’s letter requested recognition and bargaining with
the Union as the representative of the professional medical interpreters
and transplant financial coordinators, the Respondent admits that the
Union’s letter referenced the Board’s letter certifying the Union as
those employees’ representative and asked the Respondent to confirm
its availability to bargain on one of four stated dates. Further, the Re-
spondent admits that, since February 23, 2016, it has failed and refused
to recognize and bargain with the Union as the exclusive collective-
bargaining representative of the professional medical interpreters and
transplant financial coordinators. We find that there is no factual dis-
pute that the Union’s letter constituted a request for recognition and
bargaining regarding those employees.
On February 9, 2018, the General Counsel filed a Mo-
tion for Summary Judgment and a brief in support of its
motion. On February 13, 2018, the Board issued an or-
der transferring the proceeding to the Board and a Notice
to Show Cause why the motion should not be granted.
The Respondent and the Union filed responses.
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 Acting Regional Director for Re-
gion 4’s certification of the Union on the basis of its con-
tentions, raised and rejected in the underlying representa-
tion proceeding, that the Board lacks jurisdiction over the
Respondent because of its association with Temple Uni-
versity; that, even assuming the Board has jurisdiction
over the Respondent, it should exercise its discretion and
decline to assert that jurisdiction; that the Board should
find that the preexisting unit certified by the Pennsylva-
nia Labor Relations Board (PLRB) does not warrant
comity; and that the Union should be estopped from ar-
guing that the Board has jurisdiction because of its prior
reliance on PLRB’s jurisdiction.3
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. We
therefore find that the Respondent has not raised any

3 The Respondent advances an affirmative defense that could not
have been raised in the representation proceeding: that the complaint
fails to state a claim under the Act upon which relief can be granted. In
addition, the Respondent advances the affirmative defense that the
union’s request for NLRB jurisdiction is barred by the Supreme Court’s
decision in New Hampshire v. Maine, 532 U.S. 742 (2001), and by the
doctrines of laches, estoppel, and/or waiver. The Respondent has not
offered any explanation or evidence to support these bare assertions,
beyond its previously litigated contentions that the Union has imper-
missibly changed its position regarding the Board’s jurisdiction. Thus,
we find that these affirmative defenses are insufficient to warrant denial
of the General Counsel’s motion for summary judgment in this pro-
ceeding. See, e.g., Station GVR Acquisition, LLC d/b/a Green Valley
Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018);
George Washington University, 346 NLRB 155, 155 fn. 2 (2005), enfd.
2006 WL 4539237 (D.C. Cir. 2006); Circus Circus Hotel, 316 NLRB
1235, 1235 fn. 1 (1995). In addition, insofar as the Respondent’s lach-
es argument may relate to delays in the Board’s proceedings, the Board
and the courts have long held that the defense of laches does not lie
against the Board as an agency of the United States Government. En-
tergy Mississippi, Inc., 361 NLRB 892, 893 fn. 5 (2014), affd. in rele-
vant part 810 F.3d 287 (5th Cir. 2015), citing NLRB v. J.H. Rutter-Rex
Mfg. Co., 396 U.S. 258 (1969); see NLRB v. Quinn Restaurant Corp.,
14 F.3d 811, 817 (2d Cir. 1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
issue that is properly litigable in this unfair labor practice
proceeding. See Pittsburgh Plate Glass Co. v. NLRB,
313 U.S. 146, 162 (1941).4 Accordingly, we grant the
Motion for Summary Judgment.5
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a cor-
poration engaged in the operation of an acute-care hospi-
tal in Philadelphia, Pennsylvania.6
During the year preceding the issuance of the com-
plaint, in conducting its operations described above, the
Respondent derived gross revenues in excess of
$500,000 and purchased and received goods and materi-
als valued in excess of $50,000 directly from points lo-
cated outside the Commonwealth of Pennsylvania.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and

4 In its response to the Notice to Show Cause, the Respondent
acknowledges that generally, in the absence of newly discovered or
previously unavailable evidence or special circumstances, a respondent
is not entitled to relitigate issues which were or could have been litigat-
ed in a prior representation proceeding. This principle is longstanding
and endorsed by the Supreme Court. See Pittsburgh Plate Glass, 313
U.S. at 162. The Respondent argues, however, that the Board is not
precluded from reconsidering such previously litigated issues in order
to correct erroneous conclusions from prior proceedings, citing St.
Francis Hospital, 271 NLRB 948, 949 (1984), and Sub-Zero Freezer
Co., 271 NLRB 47, 47 (1984). St. Francis Hospital and Sub-Zero
Freezer are two of a limited number of cases in which the Board has
departed from the rule that, in a certification-testing unfair labor prac-
tice case, issues that had been presented to and decided by the Board in
a prior, related representation case cannot be relitigated and will not be
reconsidered. Having reviewed the facts and arguments presented by
the Respondent in its response to the Notice to Show Cause, we find no
basis for departing from our longstanding rule or disturbing our Deci-
sion on Review and Order affirming the Acting Regional Director’s
decision in the underlying representation case. See Memorial Hospital
of Salem County, 357 NLRB No. 119, slip op. at 1–2 fn. 5 (2011); cf.
Local 340, New York New Jersey Regional Joint Board, 365 NLRB No.
61 (2017).
5 The Respondent’s request that the complaint be dismissed is there-
fore denied.
Member Emanuel did not participate in the underlying representa-
tion proceeding. He expresses no opinion on the merits of the Board’s
decision in that proceeding. Nonetheless, he agrees with his colleagues
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, with the parties retaining their respective
rights to litigate relevant issues on appeal.
6 In its answer, the Respondent denies the complaint allegation that
“[a]t all material times, Respondent, a corporation, has operated an
acute-care hospital with four locations in Philadelphia, Pennsylvania.”
It admits, however, that the Respondent “is a corporation and has oper-
ated an acute care hospital in Philadelphia, Pennsylvania since 1996.”
It further states that, for 125 years before the Respondent’s 1996 incor-
poration, it operated as an unincorporated subsidiary of Temple Univer-
sity.
(7) and a health care institution within the meaning of
Section 2(14), and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.7
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
At all materials times John Lasky, Chief Human Re-
sources Officer of Temple University Health System, has
been a supervisor of the Respondent within the meaning
of Section 2(11) of the Act and an agent of the Respond-
ent within the meaning of Section 2(13) of the Act.8
Following a self-determination election held on Janu-
ary 28, 2016, the Acting Regional Director for Region 4
issued a certification of representative on February 18,
2016, certifying that the Union is the exclusive collec-
tive-bargaining representative of “all full-time and regu-
lar part-time professional medical interpreters and all
full-time and regular part-time transplant financial coor-
dinators employed by the Employer” (the Voting Group)
as part of the existing unit of professional and technical
employees it currently represents:9
A subdivision of Temple University Health System’s
unit working at Temple University Hospital and Tem-
ple University Children’s Medical Center comprised of
all full-time and regular part-time professional and

7 The Respondent in its answer denies the conclusory allegations in
pars. 2(c) and 3 of the complaint that it is an employer engaged in
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act and a
health care institution within Sec. 2(14) of the Act, and that the Union
is a labor organization within the meaning of Sec. 2(5) of the Act.
However, the Respondent’s answer admits the underlying factual alle-
gations that, during the year preceding issuance of the complaint, the
Respondent derived gross revenues in excess of $500,000, and pur-
chased and received goods and materials valued in excess of $50,000
directly from points located outside the Commonwealth of Pennsylva-
nia. These admissions are sufficient to establish that the Respondent is
engaged in commerce. See Siemons Mailing Service, 122 NLRB 81
(1958). Further, in the underlying representation proceeding, the Re-
spondent stipulated that the Union is a labor organization within the
meaning of the Act. Accordingly, we find that the Respondent’s deni-
als in its answer do not raise any issue warranting a hearing regarding
these allegations. See, e.g., Spruce Co., 321 NLRB 919, 919 fn. 2
(1996), and cases cited there.
8 The Respondent in its answer denies the complaint’s allegation
that Lasky has been employed by the Respondent as its Chief Human
Resources Officer but states that he holds that position as an employee
of Temple University Health System (TUHS). The General Counsel
concedes that Lasky is employed by TUHS, rather than the Respondent,
and notes that he was alleged as TUHS’s employee in the underlying
representation case. The Respondent does not dispute that Lasky acts
as the Respondent’s representative through his position with TUHS.
9 The existing unit was certified by the PLRB on July 24, 2006.
Although the Complaint alleged a different certification date, the Gen-
eral Counsel acknowledges that the correct date is July 24, 2006, as
stated by the Respondent.
The Acting Regional Director’s certification substitutes the spelling
“employees” wherever the PLRB certification uses “employes.”
TEMPLE UNIVERSITY HOSPITAL, INC. 3
technical employees [employed by the Respondent],
excluding [all other employees,] physicians, nurses,
pharmacists, office clerical employees, students, and
employees on temporary visas, management level em-
ployees, supervisors, first level supervisors, confiden-
tial employees and guards as defined in the Act.
The Acting Regional Director further certified that the pro-
fessional employees wished to be included with nonprofes-
sional employees in a unit for the purposes of collective
bargaining.10 The Union continues to be the exclusive col-
lective-bargaining representative of the unit, including the
employees in the voting group, under Section 9(a) of the
Act.
B. Refusal to Bargain
By letter dated February 23, 2016, the Union requested
that the Respondent recognize it as the exclusive collec-
tive-bargaining representative of the Voting Group and
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of the professional
medical interpreters and transplant financial coordina-
tors. Since about February 23, 2016, the Respondent has
failed and refused to do so.
We find that the Respondent’s conduct constitutes an
unlawful 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 February 23, 2016,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the professional
medical interpreters and transplant financial coordinators
as part of the appropriate unit, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in 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 recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement.11

10 The professional medical interpreters voted on whether they
wished to be included in a unit with nonprofessional employees, as well
as voting on whether they wanted to be represented by the Union for
purposes of collective bargaining. The transplant financial coordinators
voted only on the latter question.
11 The Charging Party’s brief in support of the General Counsel’s
motion requests 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 underly-
ORDER
The National Labor Relations Board orders that the
Respondent, Temple University Hospital, Inc., Philadel-
phia, Pennsylvania, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Temple Allied Professionals, Pennsylvania Association
of Staff Nurses and Allied Professionals (PASNAP) (the
Union) as the exclusive collective-bargaining representa-
tive of all full-time and regular part-time professional
medical interpreters and all full-time and regular part-
time transplant financial coordinators employed by the
Respondent as part of 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.
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 all full-time
and regular part-time professional medical interpreters
and all full-time and regular part-time transplant financial
coordinators employed by the Respondent as part of the
following appropriate unit concerning terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
A subdivision of Temple University Health System’s
unit working at Temple University Hospital and Tem-
ple University Children’s Medical Center comprised of
all full-time and regular part-time professional and
technical employees [employed by the Respondent],
excluding [all other employees,] physicians, nurses,
pharmacists, office clerical employees, students, and
employees on temporary visas, management level em-
ployees, supervisors, first level supervisors, confiden-
tial employees and guards as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Philadelphia, Pennsylvania, copies of the
attached notice marked “Appendix.”12 Copies of the
notice, on forms provided by the Acting Regional Direc-
tor for Region 4, after being signed by the Respondent’s

ing representation proceeding 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.
12 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed any of the
facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees
employed by the Respondent at any time since February
23, 2016.
(c) Within 21 days after service by the Region, file
with the Acting Regional Director for Region 4 a sworn
certification 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. May 11, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
______________________________________
William J. Emanuel, 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
violated 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 Temple Allied Professionals, Pennsylvania Associa-
tion of Staff Nurses and Allied Professionals (PASNAP)
(the Union) as the exclusive collective-bargaining repre-
sentative of our professional medical interpreters and our
transplant financial coordinators 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 our professional medical
interpreters and our transplant financial coordinators as
part of the following bargaining unit:
A subdivision of Temple University Health System’s
unit working at Temple University Hospital and Tem-
ple University Children’s Medical Center comprised of
all full-time and regular part-time professional and
technical employees [employed by the Respondent],
excluding [all other employees,] physicians, nurses,
pharmacists, office clerical employees, students, and
employees on temporary visas, management level em-
ployees, supervisors, first level supervisors, confiden-
tial employees and guards as defined in the Act.
TEMPLE UNIVERSITY HOSPITAL, INC.
The Board’s decision can be found at
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decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.