University of Chicago

National Labor Relations Board - Board Decisions

Dec 4, 2018

367 NLRB No. 41 (N.L.R.B. 2018)

367 NLRB No. 41
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.
University of Chicago and Healthcare, Professional,
Technical, Office, Warehouse and Mail Order
Employees, Local 743, IBT. Case 13-CA-217957
December 4, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN 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 6, 2018, and June 14, 2018, respectively,
by Healthcare, Professional, Technical, Office, Ware-
house and Mail Order Employees, Local 743, IBT (the
Union), the General Counsel issued the complaint on
June 15, 2018, alleging that University of Chicago (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 13−RC−198365. (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.
On July 10, 2018, the General Counsel filed a Motion
for Summary Judgment. On July 11, 2018, 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 a response.
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 of repre-
sentative on the basis of its contention, raised and reject-
ed in the underlying representation proceeding, that the
unit is not appropriate because it consists of students who
are not employees within the meaning of Section 2(3) of
the Act and who, even if they are employees, are tempo-
rary and/or casual employees specifically excluded from
the unit and/or are not entitled to collectively bargain
under the Act.
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 has it shown 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).1
Accordingly, we grant the Motion for Summary Judg-
ment.2
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 an office and place of business in Chicago,
Illinois (the Respondent’s facility), and has been operat-
ing a private nonprofit teaching and research university.3

1 In its response to the Notice to Show Cause, the Respondent
acknowledges that generally, in the absence of special circumstances, a
respondent is not entitled to relitigate issues which were or could have
been litigated in a prior representation proceeding. The Respondent
argues, however, that the Board is not precluded from reconsidering
such previously litigated issues in order to correct erroneous conclu-
sions from prior proceedings, citing St. Francis Hospital, 271 NLRB
948, 949 (1984) (Board reconsidered and vacated its earlier decision in
the underlying representation proceeding and formulated a revised
approach to health care employee units), and Sub-Zero Freezer Co.,
271 NLRB 47, 47 (1984) (Board reconsidered and reversed its earlier
decision in the underlying representation proceeding). 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 test-
ing unfair labor practice 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 Decision on Review and Order affirming the 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) (not reported in Board volume), enfd. sub nom. Salem Hospital
Corporation v. NLRB, 808 F.3d 59 (D.C. Cir. 2015); cf. Local 340,
New York New Jersey Regional Joint Board, 365 NLRB No. 61 (2017).
2 Chairman Ring did not participate in the underlying representation
proceeding. He agrees with his colleagues that the Respondent has not
raised any litigable issue 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. In a future appro-
priate proceeding, however, Chairman Ring would agree to consider
whether, and under what circumstances, students qualify as “employ-
ees” within the meaning of Sec. 2(3) of the Act. Members Kaplan and
Emanuel note that they participated in prior stages of the underlying
representation proceeding in which relitigation of the employee status
issue was precluded. Like the Chairman, they have expressed an inter-
est in considering, in a future appropriate proceeding, whether and
under what circumstances students qualify as “employees” under the
Act.
3 In its answer, the Respondent admits only that it is a “private re-
search and teaching university organized as a not-for-profit corporation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
In conducting its operations during the calendar year
ending December 31, 2017, the Respondent derived
gross revenues available for operating expenses in excess
of $1 million, and purchased and received at its Chicago,
Illinois facility products, goods, and materials valued in
excess of $5000 directly from points outside the State of
Illinois.
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
At all material times, Barb Lindner held the position of
Senior Employee / Labor Relations Consultant and has
been an agent of the Respondent within the meaning of
Section 2(13) of the Act.
Following the representation election held on June 2
and June 5−8, 2017, the Union was certified4 on March
19, 2018, as the exclusive collective-bargaining
representative of the employees in the following appro-
priate unit:
Included: All hourly paid student employees of the
University of Chicago Libraries, including students
employed at the Joseph Regenstein Library, the Joe and
Rika Mansueto Library, Eckhart Library, John Crerar
Library, D'Angelo Law Library, and the Social Ser-
vices Administration Library.
Excluded: All employees represented by other labor
organizations and covered by other collective-
bargaining agreements, temporary employees, manage-
rial employees, guards, and professional employees and

with its main campus in Chicago Illinois,” stating that it denies the
remaining allegations of this paragraph. However, in the underlying
representation proceeding, the Respondent stipulated, and the Regional
Director found, that the Respondent, “an Illinois private nonprofit cor-
poration, is a teaching and research university located in the City of
Chicago, Illinois.” To the extent that these admissions differ from the
complaint allegations, we find that the Respondent’s denials do not
raise any issues of fact warranting a hearing.
4 The Regional Director issued a Supplemental Decision and Certi-
fication of Representative on July 10, 2017. Subsequently, the Re-
spondent filed a request for review of the Regional Director’s Supple-
mental Decision and Certification of Representative. On December 15,
2017, the Board granted the Respondent’s request for review with
respect to one of the Respondent’s objections and remanded the case to
the Regional Director for consideration. On March 19, 2018, the Re-
gional Director issued a Supplemental Decision on Remand from the
Board and Certification of Representative wherein he denied the Re-
spondent’s exceptions to the Hearing Officer’s Report on Objections.
By unpublished order dated May 21, 2018, the Board denied the Re-
spondent’s request for review.
supervisors as defined in the National Labor Relations
Act.
The Union continues to be the exclusive collective-
bargaining representative of the unit employees under
Section 9(a) of the Act.
B. Refusal to Bargain
By letter dated March 27, 2018, the Union requested
that the Respondent recognize and bargain with it as the
exclusive collective-bargaining representative of the unit
employees. Since about March 27, 2018, 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 March 27, 2018,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of employees in the
appropriate unit, the Respondent has engaged in unfair
labor practices affecting commerce 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 recognize and bargain on request with the Un-
ion and, if an understanding is reached, to embody the
understanding in a signed agreement.
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by law, we shall construe the initial period of the certifi-
cation as beginning the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).
ORDER
The National Labor Relations Board orders that the
Respondent, University of Chicago, Chicago, Illinois, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Healthcare, Professional, Technical, Office, Warehouse
and Mail Order Employees, Local 743, IBT (the Union),
as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
UNIVERSITY OF CHICAGO 3
(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 employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
Included: All hourly paid student employees of the
University of Chicago Libraries, including students
employed at the Joseph Regenstein Library, the Joe and
Rika Mansueto Library, Eckhart Library, John Crerar
Library, D'Angelo Law Library, and the Social Ser-
vices Administration Library.
Excluded: All employees represented by other labor
organizations and covered by other collective-
bargaining agreements, temporary employees, manage-
rial employees, guards, and professional employees and
supervisors as defined in the National Labor Relations
Act.
(b) Within 14 days after service by the Region, post at
its facility in Chicago, Illinois, copies of the attached
notice marked “Appendix.”5 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.
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 March 27, 2018.

5 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.”
(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. December 4, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, 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 Healthcare, Professional, Technical, Office, Ware-
house and Mail Order Employees, Local 743, IBT (the
Union) as the exclusive collective-bargaining representa-
tive of our employees 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 employees in the fol-
lowing appropriate bargaining unit:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Included: All hourly paid student employees of the
University of Chicago Libraries, including students
employed at the Joseph Regenstein Library, the Joe and
Rika Mansueto Library, Eckhart Library, John Crerar
Library, D'Angelo Law Library, and the Social Ser-
vices Administration Library.
Excluded: All employees represented by other labor
organizations and covered by other collective-
bargaining agreements, temporary employees, manage-
rial employees, guards, and professional employees and
supervisors as defined in the National Labor Relations
Act.
UNIVERSITY OF CHICAGO
The Board’s decision can be found at
www.nlrb.gov/case/13-CA-217957 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.