VHS of Michigan, Inc. d/b/a Detroit Medical Center (DMC)

National Labor Relations Board - Board Decisions

Mar 29, 2016

363 NLRB No. 155 (N.L.R.B. 2016)

363 NLRB No. 155
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.
VHS of Michigan, Inc. d/b/a Detroit Medical Center
and Local 283, International Brotherhood of
Teamsters (IBT). Case 07–CA–162818
March 29, 2016
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND MCFERRAN
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 by Local 283, International Brotherhood of Team-
sters (IBT) (the Union), the General Counsel issued the
complaint on November 9, 2015, alleging that VHS of
Michigan, Inc. d/b/a Detroit Medical Center (the Re-
spondent) has violated Section 8(a)(5) and (1) of the Act
by failing and refusing to recognize and bargain with the
Union following the Union’s certification in Case 07–
RC–155360. (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 denying in part the
allegations of the complaint, and asserting affirmative
defenses.
On November 27, 2015, the General Counsel filed a
Motion for Summary Judgment. On December 1, 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. On December 15, 2015, the Re-
spondent filed a brief in opposition to the Motion for
Summary Judgment.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer to the complaint, the Respondent denies
the allegations in complaint paragraph 10, which asserts
that since about September 18, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion. However, the Respondent does not contend that it
has bargained with the Union or that its denial of com-
plaint paragraph 10 raises a genuine issue of material fact
warranting a hearing. Rather, in its opposition to the
motion for summary judgment the Respondent makes
clear that it is refusing to bargain with the Union in order
to seek judicial review of the Regional Director’s Deci-
sion and Direction of Election and her later Certification
of Results of Election in the underlying representation
proceeding.1 Thus, the Respondent contests the validity
of the Union’s certification on the basis of its conten-
tions, already raised and rejected in the representation
proceeding, (1) that the self-determination election2 that
added the client service representatives I and II3 to the
existing unit of laboratory assistants and senior laborato-
ry assistants violated the Board’s Health Care Rules con-
cerning units in acute care hospitals,4 which the Re-
spondent asserts require any addition to the unit to in-
clude all unrepresented nonprofessional classifications;
(2) that the client service representatives lack a commu-
nity of interest with the laboratory assistants; and (3) that
the election to determine the inclusion of the client ser-
vice representatives was contrary to the recognition
clause in the parties’ unexpired collective-bargaining
agreement. Therefore, we conclude that the Respond-
ent’s denial of complaint paragraph 10 does not raise an
issue warranting a hearing and that the Respondent ad-
mits its refusal to bargain with the Union.
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 or 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
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.
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 with facilities in Detroit, Michigan, and has
been engaged in the operation of acute care hospitals.

1 The Respondent did not file a request for review with the Board of
either of the Regional Director’s actions. Sec. 102.67(g) of the Board’s
Rules and Regulations states that “The parties may, at any time, waive
their right to request review. Failure to request review shall preclude
such parties from relitigating, in any related subsequent unfair labor
practice proceeding, any issue which was, or could have been, raised in
the representation proceeding.” Nonetheless, in ruling on the General
Counsel’s motion, we have reviewed the record in reaching our deci-
sion here.
2 See Globe Machining & Stamping Co., 3 NLRB 294 (1937); Ar-
mour & Co., 40 NLRB 1333 (1942).
3 The parties refer to the disputed classifications interchangeably as
“client service representatives” and “client services representatives.”
4 29 CFR §103.30(c).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In conducting its operations during the calendar year
ending December 31, 2014, the Respondent derived
gross revenues in excess of $250,000 and purchased and
received at its Detroit, Michigan facilities goods and ma-
terials valued in excess of $5000 directly from points
located outside the State of Michigan.
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 18,
2015, in Case 07–RC–155360, the Regional Director
issued a certification that the Union is the exclusive col-
lective-bargaining representative of the full-time and
regular part-time client service representatives I and cli-
ent service representatives II employed by the Respond-
ent as part of the existing unit of laboratory assistants and
senior laboratory assistants that the Union currently rep-
resents.
Based on this certification, the following employees of
the Respondent (the unit) constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All full-time and regular part-time client service repre-
sentatives I, client service representatives II, laboratory
assistants, and senior laboratory assistants employed by
the Respondent at and out of its facilities; but excluding
group leaders, guards and supervisors as defined in the
Act and all other employees.
The Union continues to be the exclusive collective-
bargaining representative of the unit, including the em-
ployees in the voting group, under Section 9(a) of the
Act.
B. Refusal to Bargain
On September 18 and October 2, 2015, the Union re-
quested in writing that the Respondent recognize and
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of the unit.
Since about September 18, 2015, the Respondent has
failed and refused to recognize and bargain with the Un-
ion as the exclusive collective-bargaining representative
of the unit, including the client service representatives I
and II.
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).
CONCLUSION OF LAW
By failing and refusing since September 18, 2015, to
recognize and bargain with the Union as the exclusive
collective-bargaining representative of the client service
representatives I and II as part of the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) of the Act. The Respondent’s unfair labor practices
affect commerce within the meaning of 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.5
ORDER
The National Labor Relations Board orders that the
Respondent, VHS of Michigan, Inc. d/b/a Detroit Medi-
cal Center, Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain in
good faith with Local 283, International Brotherhood of
Teamsters as the exclusive collective-bargaining repre-
sentative of the client service representatives I and II 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.
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 client
service representatives I and client service representa-
tives II employed by the Employer at or out of its facili-
ties as a part of the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time client service repre-
sentatives I, client service representatives II, laboratory
assistants, and senior laboratory assistants employed by

5 The complaint 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
underlying representation proceeding involved a self-determination
election. See White Cap, Inc., 323 NLRB 477, 478 fn. 3 (1997), and
cases cited there.
VHS OF MICHIGAN, INC. 3
the Respondent at and out of its facilities; but excluding
group leaders, guards and supervisors as defined in the
Act and all other employees.
(b) Within 14 days after service by the Region, post at
its facility in Detroit, Michigan, copies of the attached
notice marked “Appendix.”6 Copies of the notice, on
forms provided by the Regional Director for Region 7,
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.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If 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 September 18, 2015.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 7 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. March 29, 2016
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

6 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.”
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 Local 283, International Brotherhood of Teamsters
as the exclusive collective-bargaining representative of
the client service representatives 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 as the
exclusive collective-bargaining representative of the cli-
ent service representatives I and client service representa-
tives II employed by the Employer at or out of its facili-
ties as a part of the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time and regular part-time client service repre-
sentatives I, client service representatives II, laboratory
assistants, and senior laboratory assistants employed by
us at and out of our facilities; but excluding group lead-
ers, guards and supervisors as defined in the Act and all
other employees.
VHS OF MICHIGAN, INC. D/B/A DETROIT
MEDICAL CENTER
The Board’s decision can be found at
www.nlrb.gov/case/07–CA–162818 or by using the QR
code below. Alternatively, you can obtain a copy of the
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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4