united states of america before the national labor relations ... - Politico

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD FOURTH REGION

TEMPLE UNIVERSITY HOSPITAL, INC. Employer and

Case 04-RC-162716

TEMPLE ALLIED PROFESSIONALS, PENNSYLVANIA ASSOCIATION OF STAFF NURSES AND ALLIED PROFESSIONALS (PASNAP) Petitioner

REGIONAL DIRECTOR’S DECISION AND DIRECTION OF ELECTION More than 40 years ago, in Temple University, 194 NLRB 1160 (1972), the Board declined to assert jurisdiction because of special circumstances existing in the relationship between Temple University and the Commonwealth of Pennsylvania. We are now presented, among other issues, with the question of whether that case should apply to Temple University Hospital, a subsidiary of Temple University. Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP) (herein called Petitioner) has been certified by the Pennsylvania Labor Relations Board (PLRB) as the bargaining representative of a unit of professional and technical employees employed by Temple University Hospital, Inc. (the Hospital or the Employer). Petitioner now seeks an NLRB Armour-Globe self-determination election for two classifications of unrepresented employees, professional medical interpreters and transplant financial coordinators, to determine whether they wish to be included in the existing unit. There are approximately 665 employees in the PLRB-certified unit and 11 employees in the petitioned-for classifications. The Employer contends that the petition should be dismissed for several reasons. First, as a threshold matter, the Hospital argues that the petition should be dismissed on the ground that judicial estoppel precludes Petitioner from seeking Board jurisdiction in this case because Petitioner successfully argued to the PLRB in 2005 that that agency should assert jurisdiction.

Petitioner maintains that judicial preclusion does not apply because there has been no undue detriment to the Hospital and because jurisdiction is a matter that must be decided by the Board. Second, the Hospital contends that the petition should be dismissed because the Hospital is a “political subdivision,” which is exempt from the Board’s definition of “employer” under Section 2(2) of the Act, pursuant to the Supreme Court’s decision in NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600, 604-605 (1971). Petitioner disagrees and maintains that the Hospital is not exempt under either of the two prongs of the Hawkins County test. Third, the Hospital argues that even if it is not an exempt employer, the Board should apply its discretion to decline jurisdiction as it did in Temple University, supra, because of the close relationship between the Hospital and the University. Lastly, the Hospital argues that even if the Board asserts jurisdiction, the Board should not accord comity to the PLRB-certified unit and hold an Armour-Globe self-determination election for the petitioned-for employees unless these employees constitute an appropriate unit. Petitioner asserts that the unit certified by the PLRB is appropriate and that therefore comity should apply and an Armour-Globe self-determination election should be held. A hearing was conducted, and the parties filed briefs. The parties also submitted a detailed factual stipulation into the record. After considering the record and the arguments presented by the parties, I1 have concluded that judicial estoppel does not preclude Petitioner from arguing that that the Board should assert jurisdiction. I have also concluded that the Hospital is an employer within the meaning of Section 2(2) of the Act and is not exempt under Hawkins County. Additionally, I have concluded that the unique circumstances in Temple University do not apply to the Hospital, and the Board should not choose to decline to assert jurisdiction. I have therefore determined that the Board has jurisdiction over the Employer. I have further determined that comity should be accorded the PLRB certification. Accordingly, I have directed an Armour-Globe election for the petitioned-for employees. The University is not a party to the present proceeding, and I make no finding as to whether the Board has jurisdiction over the University, or as to the continuing validity of the Temple University decision.

I.

BACKGROUND AND FACTS Background

The Hospital is an acute-care hospital in Philadelphia, Pennsylvania, with four locations. The Hospital’s main campus is adjacent to the Temple University School of Medicine (TUSM), and the University and the Commonwealth of Pennsylvania (the Commonwealth) own the property on which the Hospital is located. In addition to the main campus, the Hospital also operates three other facilities in Philadelphia: Temple University Hospital at Episcopal Hospital; Temple University Hospital Bone Marrow at Jeanes Hospital; and the Northeastern Ambulatory Care Center. The Hospital has almost 4,200 employees. The University, a major urban university offering undergraduate, graduate, and professional education programs, was chartered by the Commonwealth as a private college in 1888 and attained university status in 1907. In 1965, the Commonwealth enacted the Temple 1

Regional Director Dennis P. Walsh has recused himself from this matter. 2

University-Commonwealth Act, which provided for, "the establishment and operation of Temple University as an instrumentality of the Commonwealth to serve as a State-related university in the higher education system of the Commonwealth." In 1972, in Temple University, supra, a Board majority dismissed a representation petition, deciding that it would not effectuate the purposes of the Act to assert jurisdiction over the University. Although the Board found that the University was an “employer” within the meaning of Section 2(2) of the Act and that the relevant monetary jurisdictional standards were satisfied,2 the Board nevertheless determined that the University’s “unique relationship” to the Commonwealth would render it unable to bargain effectively and therefore discretionarily declined to assert its jurisdiction. The Board relied on the fact that the University was designated an “instrumentality” of the Commonwealth and expressly made a “State-related university in the higher education system of the Commonwealth,” that the Commonwealth paid for and owned the land and buildings comprising a significant part of the University's physical plant, that 12 of the 36 members of the board of trustees were appointed by elected Commonwealth officials, and that the Commonwealth played a “substantial, if not controlling” part in the university's financial affairs, along with concomitant control over its activities. The Board also noted that as an “instrumentality” of the Commonwealth, Temple is a “public employer” under Pennsylvania's Public Employees Relations Act. Temple University, 194 NLRB at 1161. Since that time, the Board has not asserted jurisdiction over the University or the Hospital, and, as discussed below, various employee units at both institutions have been certified by the PLRB. The Relationship Between The University, TUHS, and The Hospital Until 1995, the Hospital was an unincorporated division of the University. As a result of a restructuring at that time, the University established Temple University Health System (TUHS), a shell corporation for the purpose of holding health-care related assets of the University, including the Hospital. Around 1995, the Hospital also incorporated as a non-profit corporation. The Hospital is one of more than 10 subsidiary organizations of TUHS, along with Temple Physicians, Inc. (TPI), among others. The parties stipulated that the University and TUHS are not a single employer. The University, TUHS, and the Hospital each has its own board of directors and bylaws. Under the TUHS bylaws, the University, which is the sole shareholder of TUHS, appoints all TUHS board members, except for the ex officio members, who include the president of the University, the chair of the board of directors of the University, another representative of the University, and the dean of TUSM. The chair and vice chair of the TUHS board of directors are also University board members. In addition to appointing the TUHS board members, the University also has the authority to remove them. Currently, nine of the 14 TUHS board members also serve on the University board. Similarly, pursuant to the Hospital’s bylaws, as the sole shareholder of the Hospital, TUHS appoints the Hospital board members,3 who number between 13 and 30, and also has the 2 3

The University conceded both of these points at the hearing. The board members are referred to in the bylaws as “governors.” 3

authority to remove the board members. The Hospital’s bylaws require that the president of the University, the chair of the board of directors of the University, and the Chief Executive Officer of TUHS are appointed as voting ex officio board members. Four other nonvoting ex officio board members, including the dean of TUSM and the Chief Operating Officer of TUHS, are also appointed. Currently, there are seven members of the Hospital board who are employed by the University or are trustees of the University. There are no public officials on the TUHS or Hospital boards. The Hospital board chooses its own officers. Dr. Larry Kaiser is the Chief Executive Officer of TUHS as well as the Dean of the School of Medicine and Senior Vice President for Health Affairs at the University. Verdi DiSesa, the Chief Operating Officer of TUHS, is also the Vice Dean for Clinical Affairs for TUSM. Dr. Arthur Feldman, Chief Academic Officer of TUHS, is also Executive Dean for TUSM. All three of these officials have daily operational control of TUHS and are employees of the University. They are involved in day-to-day operations of the Hospital to varying degrees. Kaiser is personally involved in hiring the Hospital’s medical staff, which includes both University employees and Hospital employees. Kaiser is also involved in hiring the Hospital CEO, and has significant input in selecting the senior management officials who report to the CEO. Feldman is involved on a daily basis in training residents, who are Hospital employees. He also oversees all the Hospital training programs to ensure they are in compliance with all regulatory and accreditation requirements. The TUHS board approves the Hospital’s annual budget, which is included in the TUHS annual budget along with the budgets of the other TUHS subsidiaries. In turn, the University Board approves the TUHS annual budget. The consolidated audited financial statement for the University contains information about the subsidiary corporations. TUHS also has audited financial statements which contain financial information about all of its subsidiaries, including the Hospital. Although the University is a separate entity from TUHS and the Hospital, certain administrative functions of TUHS and the Hospital are connected to the University. For example, Beth Koob, General Counsel for TUHS, stated that her office provides legal advice to both the University and TUHS. There are arms-length transfers of money between the University and TUHS for various items such as employee compensation and rent. The University bills TUHS for services including maintenance, telecommunications, institutional support, security, and employee tuition. Similarly, there are services billed from TUHS to the University. The University plays no role in the daily operations of the Hospital. John Kastanis, the President and CEO of the Hospital, reports to TUHS COO DiSesa, as do the CEOs of the other TUHS subsidiaries. Gerry Oetzel, the Hospital’s Chief Financial Officer, reports to Robert Lux, TUHS’ Chief Financial Officer. Like the University, the Hospital receives appropriations from the Commonwealth. Last fiscal year it was expected to receive $148 million. Unlike the University, the Hospital is not subject to FOIA, the Right to Know Act, the Pennsylvania Adverse Interest Act, or the Public

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Official and Employer Ethics Act. It is also exempt from state tax as a public charity. The Commonwealth is not involved in the day-to-day operations of the Hospital or TUHS, except with regard to its role in licensing and regulating health care and educational facilities. The Hospital’s Control Over Labor Relations TUHS is involved in establishing wages, benefits, and personnel policies for Hospital employees and many other aspects of the Hospital’s labor relations. Kaiser must approve contract terms offered to Hospital employees during collective bargaining, as well as the wages and benefits of unrepresented employees. The Board of Directors of TUHS may also be consulted regarding collective-bargaining terms. Human resource policies covering Hospital employees are developed by the TUHS human resource staff in conjunction with the Office of University Counsel. They are then recommended by the Chief Human Resources Officer of TUHS, John Lasky, and approved by TUHS COO DiSesa. Commonwealth representatives are not consulted and do not approve any employee handbooks or personnel policies of TUHS for its subsidiaries. There are no human resource policies developed by Hospital management solely for Hospital employees. Wages and benefits for unrepresented Hospital employees are reviewed annually, or when market or financial conditions warrant a review, by the TUHS human resource staff, under the direction of Lasky. Recommendations for changes are made by Lasky, in consultation with TUHS CFO Lux, and changes are submitted to Kaiser for approval. All changes to wages, benefits, and pay scales must fall within the budget parameters approved by Kaiser and the TUHS Board, and these personnel costs are included in the TUHS budget that must be approved annually by the University Board of Trustees. The benefits offered to unrepresented employees of TUHS and the Hospital are the same. Although the University generally offers the same benefit categories to its employees, the specifics of the University-offered benefits differ from those offered by TUHS, except in the case of the joint TUHS/University retirement and retiree medical plans. Payroll functions for Hospital employees are performed by TUHS. Commonwealth representatives are not involved in fashioning or setting wage scales or benefits for Hospital or TUHS employees. Wages and benefits for the Hospital’s unionized employees are determined through collective bargaining except where the same benefits are applicable to represented and unrepresented employees. The bargaining team generally is led by a representative of TUHS human resources, acting under the direction of Lasky, and includes managers from the Hospital who are involved in the operations of the departments involved in the negotiations. The same is true for collective-bargaining negotiations with other entities within TUHS. The current collective-bargaining agreement for the professional and technical unit was signed by Caryl Mahoney, Interim Vice President, TUHS Human Resources, Ellen M. Jahn, Hospital Director of Labor Relations, and four additional Hospital Directors and managers. Kaiser approves contract terms offered for employees of the Hospital during collective bargaining. The TUHS Board of Directors may also be consulted regarding collectivebargaining terms. During contract negotiations with Petitioner for the professional and technical

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unit and a nurses unit at the Hospital in September 2009, the TUHS Board was not only consulted by the CEO of TUHS, but formed a labor subcommittee to review the negotiations and related matters. Economic terms must be consistent with budget parameters which are approved by TUHS. However, the collective-bargaining agreements of the Hospital and the University are not submitted to the boards of the Hospital, the University, or TUHS for formal approval. University human resource staff members do not negotiate the collective-bargaining agreements covering Hospital employees, and the University human resource office cannot bind the Hospital to grievance settlements or collective-bargaining agreements. However, negotiators for the University and TUHS confer regarding matters of collective bargaining and contract administration when needed. Primarily, this occurs when there are common issues and when there are negotiations or disputes with bargaining units represented by the same union. The procedures for hiring, discipline, discharge, assignment, promotions, and transfers of Hospital employees depend on the position involved. Generally, decisions for non-executives are made by management of the employee’s department at the Hospital in conjunction with human resources employees at the Hospital who report to Lasky. All hiring, promotions, or transfers must be effectuated pursuant to budget parameters approved by TUHS and, ultimately, by the University through its approval of the TUHS budget. The University human resources staff plays no role in the day-to-day functioning of labor relations at the Hospital. Employees of the Hospital, the University, and TUHS work side-by-side on a daily basis at the Hospital and TPI across a variety of positions. They also work side-by-side at medical practice facilities operated by the University known as Temple University Physicians (TUP). Among other things, University maintenance and finance employees work near Hospital employees as they are responsible for maintenance of the Hospital facilities and management of infrastructure projects. As a result of these day-to-day interactions, employees of one entity may take direction from employees of another. For example, physicians who practice at the Hospital, but are employed by the University, routinely direct the work of Hospital employees in a variety of areas. When incidents that could lead to discipline arise, they are reported to the employee’s managers to take appropriate disciplinary action. Bargaining Units at the Hospital The PLRB has exercised jurisdiction over the University and the Hospital for decades. In 2006, following a hearing that was held in 2005, the PLRB certified Petitioner as the representative of a unit of professional and technical employees,4 In the Matter of the Employees of Temple University Health System, Case No. PERA-R-05-498-E (2006). During those proceedings, both Petitioner and the Hospital contended that the Board did not have jurisdiction, while another labor organization argued to the contrary. The PLRB found that it, rather than the NLRB, had jurisdiction. The PLRB then conducted an election which afforded the professional employees an opportunity to indicate their preference for representation in a separate unit 4

Although TUHS is named as the employer in the PLRB certification, the parties stipulated that the Hospital and TUHS are treated as interchangeable by the parties for purposes of which entity is designated the employer for purposes of collective bargaining. 6

consisting of only professional employees or an overall unit of professional and nonprofessional employees, and the professional employees chose to be included in the overall unit. Petitioner won the election, no party filed objections, and the PLRB certified a unit of the Hospital’s “fulltime and regular part-time professional and technical employees; and excluding physicians, nurses, pharmacists, office clerical employees, students, and employees on temporary visas, management level employees, supervisors, first level supervisors, confidential employees and guards as defined in the Pennsylvania Public Employee Relations Act.” Following certification, Petitioner and the Hospital entered into a series of collective-bargaining agreements setting terms and conditions of employment for the unit, the most recent of which runs from October 1, 2013 through September 30, 2016. In addition to the professional and technical unit, the following collective-bargaining units are present at the main campus: a service employee unit of more than 600 employees represented by National Union of Hospital and Healthcare Employees, AFSCME, AFL-CIO and its Affiliate District 1199C (District 1199C); a clerical employee unit of approximately 300 employees represented by the Guild of Professional, Technical and Clerical Employees, a Division of District 1199C; and, a nurses unit of approximately 1,200 employees represented by Temple University Hospital Nurses Association/PASNAP. At its Episcopal Campus, the Hospital has the following collective-bargaining units: a service employee unit of approximately 100 employees represented by District 1199C; a mental health technicians unit of 90 employees represented by District 1199C; a non-professional technical unit of approximately 50 employees represented by Health Professionals and Allied Employees; a nurses and professional employees unit of almost 130 employees represented by Health Professionals and Allied Employees; and a maintenance employees and engineers unit of approximately 20 employees represented by Operating Engineers Local 835. In addition, there are eleven collective-bargaining units at the University and one at Jeanes Hospital, another subsidiary of TUHS. The Petitioned-For Classifications Professional medical interpreters work in the Healthcare Outreach Department of the Hospital. They report to Angel Pagan, Director of Temple Linguistic and Cultural Services, who reports to Sherry Mazer, Hospital Regulatory Officer. There are about eight professional medical interpreters. They work on day shift, 40 hours per week, eight hours per day, and their wages range from $20.00 to $24.88 per hour. The only other employees in the Healthcare Outreach Department are the Manager, Training Linguist/Cultural Services, and Mr. Pagan, both of whom are unrepresented supervisory employees. The parties stipulated that professional medical interpreters are skilled, professional employees. In addition to providing services at the Hospital, professional medical interpreters provide services at other facilities within TUHS and the University, including Episcopal Hospital, Northeastern Hospital, TPI, and TUP. They routinely work with various patient-care employees at the facilities, including physicians, residents, nurses, technicians, social workers, and medical assistants. Some of the employees with whom the medical interpreters regularly work are

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represented by Petitioner (including social workers and case managers), some are represented by PASNAP in a separate nurses unit, some are unrepresented (particularly physicians and residents), and some are represented by University bargaining units (such as staff at physician practices). They also interact at times with employees represented by District 1199C. Transplant financial coordinators work at the Hospital’s main campus in the Transplant Department. They report to Cecilia Pemberton, Associate Hospital Director/Transplant Services, who reports to Rose Nolan, Hospital Chief Operating Officer. There are about three employees in the position. All three work on day shift, 40 hours per week, eight hours per day. Their wages range from $24.28 to $24.45 per hour. They routinely work with social workers and transplant data coordinators, who are in the professional and technical unit represented by Petitioner. They also work on a daily basis with nurses who are represented in a separate nurses unit and clerical staff and financial counselors represented by District 1199C, as well as unrepresented physicians and residents and employees of physician practices who are employed by the University. Professional medical interpreters and transplant financial coordinators do not have any interchange with each other nor do they have any interchange with employees in the existing professional and technical bargaining unit. The parties agree that the professional medical interpreters and transplant financial coordinators share a community of interest with employees of the existing unit and each other. The Hospital does not object to their addition to the existing unit on that basis.

II.

LEGAL PRINCIPLES A.

Judicial Estoppel

The purpose of judicial estoppel is, “to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” New Hampshire v. Maine, 532 US 742, 749-750, 121 S. Ct. 1808 (2001). In that decision, the Supreme Court set forth three factors to be used in deciding whether to apply the doctrine in a particular case: (1) whether a party's later position is “clearly inconsistent” with its earlier position; (2) whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled;” and (3) whether the party seeking to assert an inconsistent position “would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.” Id. at 750-751. The Board does not usually apply the doctrine of estoppel in cases where it has not been a party to the prior proceeding. Galaxy Towers Condominium Association, 361 NLRB No. 36, fn. 3 (2014); Lincoln Center for the Performing Arts, Inc., 340 NLRB 1100, 1127-1128 (2003); Field Bridge Associates, 306 NLRB 322, 323 (1992), enfd. 982 F.2d 845 (2d Cir. 1993). The Board adheres to the general rule that if it was not a party to the prior private litigation, it is not barred from litigating an issue involving enforcement of federal law. See Allbritton Communications, 271 NLRB 201, 202 fn. 4 and sources cited (1984), enfd. 766 F.2d 812 (3d Cir. 1985). Underlying this rule is the long-recognized principle that Congress has entrusted to

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the Board's jurisdictional competence the determination of matters properly within its statutorilydefined sphere. Field Bridge Associates, supra. B.

Jurisdiction 1. Political Subdivision

Section 2(2) of the Act provides that an employer, “shall include . . . any person acting as an agent of an employer, directly or indirectly, but shall not include . . . any State or political subdivision thereof . . .” In evaluating whether an employing entity constitutes a political subdivision that is excluded from the Act’s coverage, the Board has consistently applied the test that the Supreme Court established more than four decades ago in NLRB v. National Gas Utility District of Hawkins County, 402 U.S. 600 (1971). Under Hawkins County, the political subdivision exemption is limited to an entity that is either, 1) "created directly by the State, so as to constitute a department or administrative arm of the government," or 2) “administered by individuals who are responsible to public officials or to the general electorate.” Id. at 604-605. See also Rosenberg Library Association, 269 NLRB 1173, 1174 (1984); Pennsylvania State Association of Boroughs, 267 NLRB 71, 72 (1983). The Board will look to the “actual operations and characteristics” of the subject entity when assessing the Hawkins County factors, and it will not assert jurisdiction over entities if they satisfy either prong of the Hawkins County test. Id. at 603-604. Included among the entities for which the Board has declined to assert jurisdiction under the Hawkins County criteria are, for example, a state bar association, State Bar of New Mexico, 346 NLRB 674, 678 (2006); a medical hospital and its clinics, Regional Medical Center at Memphis, 343 NLRB 346 (2004); and the trust for a public zoo, Oklahoma Zoological Trust, 325 NLRB 171 (1997). The Board has consistently held that entities created by private individuals as nonprofit corporations are not exempt from the Act’s coverage under the first prong of the Hawkins County analytical test. Chicago Mathematics & Science Academy Charter School, Inc., 359 NLRB No. 41, slip op. at 6 (2014) (Board overturned Acting Regional Director’s determination that entity operating a charter school was a political subdivision exempt from the Act’s coverage). See also Truman Medical Center, Inc., 239 NLRB 1067, 1067-1068 (1978) (medical center organized under Missouri not-for-profit statute). Turning to the second prong of the Hawkins County test, in determining if an entity is “administered by” individuals who are responsible to public officials or the electorate, the Board examines whether a majority of the individuals who administer the entity are appointed by, or can be removed by, public officials. Chicago Mathematics, supra, slip op. at 9-10. The Board consistently asserts jurisdiction in cases where public officials have no role in the selection and/or removal of an employer’s officers or directors. See, e.g., Research Foundation of the City of New York, 337 NLRB 965, 969-970 (2002). In order to show public control over the board, a majority of directors must be responsible to public officials. FiveCAP, 331 NLRB 1165, 1165 (2000), enfd. 294 F.3d 768 (6th Cir. 2002). Where public control over the board members’ appointment or removal is not mandated by law, but voluntarily established by the entity itself in its bylaws or other corporate documents, such public control has been found insufficient to

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satisfy an exemption under the second prong. Research Foundation, 337 NLRB at 969. The rationale behind this distinction is that ultimate control rests in the hands of the employer, not the government, because the employer can change the procedures for selection and removal. See Jefferson County Community Center v. NLRB, 732 F.2d 122, 125 fn. 3 (10th Cir. 1984), overruled on other grounds, Aramark Corp. v. NLRB, 179 F.3d 872 (10th Cir. 1999). 2.

Ties to exempt government entity

In Management Training Corp., 317 NLRB 1355, 1358 (1995), the Board adopted a simplified two-part test to determine whether jurisdiction should be asserted over private sector employers with close ties to an exempt government entity. The Board held that this determination would be based on whether the company itself meets the definition of “employer” under Section 2(2) of the Act and whether such an employer meets the applicable monetary jurisdictional standards. Thus, “jurisdiction [w]ould no longer be determined on the basis of whether the employer or the Government controls most of the employee's terms and conditions of employment.” Id. at 1357. See also, e.g., Jacksonville Urban League, 340 NLRB 1303 (2003). The Board also stated that it would not analyze whether the private sector employer is a joint employer with the exempt government entity in order to determine jurisdiction. Management Training, supra at 1358, fn. 16; Jacksonville Urban League, supra at 1303. Instead, the Board will focus on whether the private employer controls some matters relating to the employment relationship involving the petitioned-for employees, such as to make it an “employer” under the Act. Chicago Mathematics, supra, slip op. at 10, fn. 29; Recana Solutions, 349 NLRB 1163, 1164-1165 (2007). Several courts of appeals have upheld the Board’s assertion of jurisdiction over private employers under the Management Training standard. See, e.g., Aramark Corp. v. NLRB, 156 F.3d 1087 (10th Cir. 1998); Pikeville United Methodist Hospital of Kentucky, 109 F.3d 1146 (6th Cir. 1997); Teledyne Economic Development v. NLRB, 108 F.3d 56 (4th Cir. 1997); NLRB v. Federal Security, Inc., 154 F.3d 751 (7th Cir. 1998). C.

Comity

The Board’s established practice has been to accord the same effect to the elections and certifications of responsible state government agencies as to the Board’s, provided that the state proceedings reflect the true desires of the affected employees, election irregularities are not involved, and there has been no substantial deviation from due process requirements. Allegheny General Hospital, 230 NLRB 954, 955 (1977). The Board has often accorded comity to state labor relations agencies concerning unit placement questions so long as the decisions are not “clearly repugnant” to the policies of the Act. See, e.g., Stand-By One Associates, 274 NLRB 952, 953 (1985); St. Joseph's Hospital, 221 NLRB 1253 (1975), enfd. 542 F.2d 495 (8th Cir. 1976). In examining a state certification of a mixed professional/nonprofessional unit for purposes of determining if a Board election requires self-determination balloting on the part of the unit professionals, the Board does not accept or reject certifications automatically, but rather looks to the original process. Corporacion de Servicios Legales de Puerto Rico, 289 NLRB 612

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fn. 2 (1988), citing St. Luke's Hospital Center, 221 NLRB 1314, 1315-1316 (1976), enfd. 551 F.2d 476 (2d Cir. 1976). Minor variations from the Board’s election procedures will not prevent the Board from recognizing state certifications. Doctors Osteopathic Hospital, 242 NLRB 447, 449 (1979); West Indian Co., 129 NLRB 1203 (1961). D.

Self-Determination Elections

An Armour-Globe self-determination election may be conducted when the incumbent representative of employees in a partially-organized facility seeks to add a group of unrepresented employees to its existing unit. Armour & Co., 40 NLRB 1333 (1942); Globe Machine & Stamping Co., 3 NLRB 294 (1937). The voting group in an Armour-Globe election must bring the existing bargaining unit into conformity with a unit that the Board would find appropriate for collective bargaining. See National Broadcasting Co., 202 NLRB 396, 397 (1973). It is necessary to determine the extent to which the employees to be included share a community of interest with unit employees, as well as whether the employees to be added constitute an identifiable distinct segment of the work force so as to constitute an appropriate voting group. St. Vincent Charity Medical Center, 357 NLRB No. 79 (2011); Warner-Lambert Co., 298 NLRB 993, 995 (1990), citing Capital Cities Broadcasting Corp., 194 NLRB 1063 (1972). In St. Vincent Charity Medical Center, supra, the Board held that modified acute-care hospital bargaining units need not conform to the Board's rule regarding acute-care hospital bargaining units when an Armour-Globe self-determination election may add certain unrepresented employees to an existing nonconforming unit that pre-dated the Board's rule.

III.

ANALYSIS A.

Judicial Estoppel

The Hospital contends that judicial estoppel should preclude the Board from accepting Petitioner’s argument that the Board should assert jurisdiction because Petitioner argued in earlier proceedings before the PLRB that the Board did not have jurisdiction. The Hospital argues that Petitioner’s actions meet the three factors set forth in New Hampshire v. Maine: Petitioner’s position now is directly contrary to the position it argued in the 2005-2006 PLRB proceeding; the PLRB accepted those arguments and certified Petitioner; and Petitioner, if successful, would impose an unfair detriment on the Hospital. Accordingly, the Hospital argues that the petition should be dismissed. Without conceding that the first two factors have been met, Petitioner argues that there has been no unfair detriment to the Hospital. Petitioner further argues that issue preclusion does not apply when the issue involved is subject matter jurisdiction before the tribunal, citing Whiting v. Krassner, 391 F.3d 540, 544 (3d Cir. 2004) (exception to general concept of judicial estoppel when it comes to jurisdictional facts or positions).

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The Hospital is correct that Petitioner argued to the PLRB that the Board did not have jurisdiction, that the PLRB accepted this argument, and that Petitioner currently contends that the Board has jurisdiction over the Hospital.5 However, as the Board was not a party to the prior proceeding, it is not precluded from determining jurisdiction – a matter properly within its statutorily-defined sphere. See Galaxy Towers Condominium Association, supra; Lincoln Center for the Performing Arts, Inc., supra; Field Bridge Associates, supra. The issue of jurisdiction, as it affects a representation proceeding, is clearly a matter that should be decided by the Board. The Supreme Court has, "consistently declared that in passing the National Labor Relations Act, Congress intended to and did vest in the Board the fullest jurisdictional breadth constitutionally permissible under the Commerce Clause." NLRB v. Reliance Fuel Oil Corp., 371 U.S. 224, 226 (1963). The Board as the agency that Congress has chosen to resolve the issue should not be precluded by the resolution of jurisdiction issues by state-court findings. In Fayette Electrical Cooperative, Inc., 316 NLRB 1118, 1119-1120 (1995), the Board rejected an employer’s argument that the Board was precluded from making a determination on jurisdiction because of a prior Board determination that the employer was an exempt employer under Section 2(2). The Board stated, “It would be contrary to the public interest, and unfair to the Employer’s employees, to delay reconsideration of the Employer’s jurisdictional status under these circumstances until the issue is presented by a litigant that was not a party to the prior case.” Id. at 1120. See also Int'l Union of Operating Engineers v. County of Plumas, 559 F.3d 1041, 1044 (9th Cir. 2009) (Ninth Circuit allowed a party that had originally removed to federal court on the basis of federal subject matter jurisdiction to challenge that jurisdiction on appeal). Even assuming that principles of judicial estoppel apply in Board proceedings where jurisdiction is at issue, I find that these principles do not bar Petitioner from arguing in favor of Board jurisdiction. With regard to the second factor cited by the Supreme Court, the facts do not show that the PLRB relied on Petitioner’s assertions in a way that would later “create the perception that either the first or the second court was misled.” New Hampshire v. Maine, supra at 750. The record does not suggest that that Petitioner misled the PLRB, and there is no reason to believe that the PLRB would have made a different determination had Petitioner made a contrary argument. With regard to the third factor, unfair advantage or detriment, the Hospital argues essentially that Petitioner derived an unfair advantage through PLRB’s assertion of jurisdiction, because the Hospital was unable to make use of certain legal remedies available under the Act, such as implementing its final offer after declaring impasse or requiring a 10-day strike notice. In my view, this is not the type of detriment or advantage about which the Supreme Court was concerned in New Hampshire v. Maine. Compare United National Insurance Co. v. Spectrum 5

Prior to filing the petition in this case, Petitioner emailed the Hospital to discuss seeking jurisdiction under the Act as a result of its concern about the potential ramifications of the Supreme Court’s anticipated decision in Friedrichs v. California Teachers Association, 135 S. Ct. 2933, 192 L. Ed. 2d 975 (2015) (Petition for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit granted), i.e., a loss of agency fees from employees. The Hospital contends that such concerns are not a valid reason for the Board to alter longstanding bargaining relationships by asserting jurisdiction. I find, however, that Petitioner’s motivation for filing the petition and seeking Board jurisdiction is not relevant to my determination in this case. 12

Worldwide, Inc., 555 F.3d 772, 779-780 (9th Cir. 2009) (applying judicial estoppel where insured had won previous case by asserting the infringement occurred in 1999 and sought to argue in new action that infringement did not occur until 2001); Eastman v. Union Pacific Railroad Co., 493 F.3d 1151, 1153 (10th Cir. 2007) (plaintiff judicially estopped from pursuing personal injury claims because of failure to disclose pending claims to bankruptcy court). Accordingly, I find that judicial preclusion does not bar litigation of the Hospital’s status before the Board at this time. B.

Jurisdiction 1. Political Subdivision

The next issue is whether the Board has jurisdiction over the Hospital, or whether, under Sec. 2(2) of the Act, the Hospital constitutes a “political subdivision” that is explicitly excluded from the Act’s coverage. Applying the first analytical prong of the Hawkins County test, it is undisputed that the Hospital is a non-profit corporation incorporated under Pennsylvania law. The Hospital was not created directly by the Commonwealth so as to constitute a department or administrative arm of the state government. Chicago Mathematics, supra, slip op. at 7 (2012); Truman Medical Center, Inc., supra. Thus, the Hospital does not meet the requirements for exemption under the first prong. Indeed, the Hospital admitted during the hearing that the first prong does not apply.6 Turning to the second prong of the Hawkins County test, the question is whether the Hospital is administered by individuals who are responsible to public officials or to the general electorate. Hawkins County, 402 U.S. at 605. The Hospital contends that it is administered by individuals who are responsible to public officials or to the electorate, because the University is an exempt employer which controls TUHS, which in turn controls the Hospital. In making this argument, the Hospital relies on an Advice Memorandum, Northern Diagnostic Services, Case 18-CA-60338 (December 13, 2011) (General Counsel found that a subsidiary of an exempt employer was also exempt because of the parent company’s control over the board of the subsidiary). Recognizing that the Board did not determine that the University is exempt as a political subdivision in Temple University, supra, the Hospital asserts that the stipulated facts concerning the degree of control that the Commonwealth has over the University make clear the University’s status as a political subdivision under Section 2(2) of the Act. The Hospital points to the fact that the University’s Board of Trustees, which includes 12 Commonwealth Trustees,7 controls the board of TUHS and is the sole entity with authority to appoint directors to and remove directors from TUHS's board, and it has the power to dissolve the board altogether. TUHS, as the sole shareholder of the Hospital and controlled by the University, is the sole entity with power to appoint members to and remove members from the Hospital's board. It too, has 6

Although the Hospital argued in its brief, based on The University of Vermont, 297 NLRB 291 (1989), that the first Hawkins County prong applied to the University making it an exempt employer, the Hospital admitted at the hearing that the first prong did not apply to the Hospital as it was not created by the Commonwealth. 7 As noted above, there are 36 total trustees on the University board. 13

the power to dissolve the Hospital’s board. The Hospital also points to the interlocking boards among the University, TUHS, and the Hospital. Accordingly, the Hospital argues that under the second prong of Hawkins County it is administered by the University and the petition should be dismissed. As stated above, I make no finding in this case as to whether the University is a political subdivision under 2(2). I find, however, that even if the University is a political subdivision, the Hospital is not administered by individuals who are responsible to public officials or to the electorate. While the University trustees have the authority to appoint and remove a majority of the governing board of TUHS, and by extension the governing board of the Hospital, that authority is conferred by the corporate documents of TUHS and the Hospital, not by a deliberate act of law on the part of the Commonwealth. See Chicago Mathematics, supra at 9; Research Foundation, supra. There is no requirement in the Hospital’s bylaws that the board of governors be public officials or appointed and removed by public officials, St. Paul Ramsey Medical Center, 291 NLRB 755, 758 (1988), and there is no federal, state, or local law that addresses the composition of the Hospital’s governing board. Simply stated, no government entity has the authority to appoint or remove a Hospital board member, and no member of the board of directors is a government official or works for a government entity. See Chicago Mathematics, supra at 9. The fact that the Hospital’s governing board is subject solely to private appointment and removal is the critical and determinative factor in the second prong of the Hawkins County analysis. Id. Thus, to the extent the Hospital’s board members are accountable to TUHS, and ultimately to the University, they are so accountable by choice rather than by law. Jefferson County Community Center, supra, 732 F.2d 125, fn. 3. Such an arrangement does not compel a finding that the Hospital is a political subdivision under the second prong of Hawkins County. Furthermore, unlike the situation in Northern Diagnostic Services, the Hospital is not a direct subsidiary of the University, but a subsidiary of a subsidiary.8 Although there is some control by the Commonwealth of Pennsylvania over some of the University’s operations, the control by the Commonwealth over the Hospital is less pervasive and more attenuated. Thus, the Hospital is dependent upon the Commonwealth for part of its funding, is located on property owned by the Commonwealth, is tax exempt, and is considered a public charity for state tax purposes. However, unlike the University, the Hospital cannot issue tax-exempt bonds, does not have to report on its use of Commonwealth appropriations to the Commonwealth Auditor General and the General Assembly, does not have annual reporting obligations to the Governor and General Assembly, and is not subject to many state statutes. In Children's Hospital of Pittsburgh, 222 NLRB 588, 589 (1976), the employer, which has a similar relationship to the University of Pittsburgh9 as the Hospital does to Temple University, urged dismissal of a representation petition, arguing that the connections between the Commonwealth and the hospital were so intimately related that jurisdiction should be declined. The Board found that while the Commonwealth had some control over the university, and while 8

I note further that as an Advice Memorandum, Northern Diagnostic Services, is not binding on the Board and has no precedential value. 9 The University of Pittsburgh is one of the four universities designated by the Commonwealth as a state-related university and instrumentality of the Commonwealth. 14

the hospital maintained a relationship with the university, the control of the Commonwealth over the hospital was “at most, indirect, dilute, and remote.” It therefore asserted jurisdiction over the hospital. A similar analysis applies in this case. Given that the record does not support a finding that the Hospital is administered by individuals who are responsible to public officials or to the general electorate, the Hospital does not meet either prong of the Hawkins County test. Accordingly, I conclude that the Hospital is not a political subdivision, and it is appropriate for the Board to assert jurisdiction in this matter. 2.

Ties to exempt government entity

In light of my finding that the Hospital is not a political subdivision under Hawkins County, the next jurisdictional question is whether the Hospital is itself an “employer” within the meaning of Section 2(2) of the Act. In arguing that the University has substantial control over the Hospital, the Hospital points to the multiple close connections between the University, TUHS, and the Hospital, citing such factors as the interlocking boards of directors, corporate control by the University over TUHS and the Hospital, overlap of employees across the entities, sharing of key infrastructure systems, and ownership of property by the University and the Commonwealth. Although there is no doubt that the University exerts significant control over TUHS and the Hospital in various ways, this control is not dispositive of the jurisdictional issue, as the record shows that the Hospital is not controlled by the University as to various meaningful matters relating to the employment relationship involving the petitioned-for employees. Thus, the University is generally not involved in negotiating collective bargaining agreements with the Hospital covering employees’ terms and conditions of employment; these agreements are negotiated by officials of TUHS. Neither is it responsible for the day-to-day functioning of labor relations at the Hospital. See Management Training, supra; Jacksonville Urban League, supra. As the Hospital itself controls significant matters relating to its employee’s employment relationship, I find that the Hospital is an employer within the meaning of Section 2(2) the Act.10 Recana Solutions, supra; D & T Limousine Service, Inc., supra; Management Training, supra. 3.

Discretionary declination of jurisdiction

The Hospital argues that even if it is found to be an employer, the Board should nonetheless decline jurisdiction for policy reasons as it did in Temple University, supra. I disagree. The Hospital’s connections to the Commonwealth are far removed from the University’s connections to the Commonwealth. Apart from its relationship with the University, the Hospital is not significantly different from any other comparably-sized nonprofit acute-care hospital, and the Board has consistently found that the operation of a hospital is not necessarily so basic or traditional a governmental function as to warrant the Board’s declining to assert jurisdiction. See Bishop Randall Hospital, 217 NLRB 1129, 1131 (1975) and reaffirmed in Grey Nuns of the Sacred Heart, 221 NLRB 1215 (1975); Truman Medical Center, Inc., 239 NLRB 1067, 1068 (1978). 10

The Employer stipulated that it is a health-care institution within the meaning of Section 2(14) of the Act and therefore meets the applicable monetary standards for the assertion of jurisdiction as a health-care institution. 15

The Hospital further argues that because the PLRB has previously asserted jurisdiction over the Hospital, the Board should decline jurisdiction so as not to disrupt several longstanding bargaining relationships. However, there is no reason to believe that the bargaining relationships cannot continue regardless of which agency exercises jurisdiction over the Hospital. See e.g. MCAR, Inc., 333 NLRB 1098, 1104-1105 (2001). Moreover, the Board has extended jurisdiction to many other hospitals which had been previously subject to the jurisdiction of state agencies. See e.g. St. Joseph’s Hospital, supra, (state certification over hospital dated back to 1956); see also State of Minnesota, 219 NLRB 1095 (1975). Thus, the assertion that this matter should remain within the jurisdiction of the PLRB for reasons of continuity is not persuasive. Based on the above, I am not persuaded that the Board should use its discretion to decline jurisdiction over the Hospital. A. Comity Petitioner asserts that the Board should accord comity to the professional and technical unit certified by the PLRB in 2006. The Hospital contends that the decision to accord comity should not be made until after the Board determines that the petitioned-for employees constitute an appropriate unit. As the Hospital has conceded that the petitioned-for employees share a community of interest with each other and with the unit, I find that the Hospital’s argument lacks merit. See Taylor Hospital, 249 NLRB 137, 141 (1980). In determining whether comity is appropriate, the fact that the unit would be considered a non-conforming mixed professional and technical employees unit under the Board’s Health Care Rule is not sufficient to find the unit “clearly repugnant” to the policies of the Act. See Doctors Osteopathic Hospital, supra at 449. See also Corporacion de Servicios Legales de Puerto Rico, supra, 289 NLRB at 612 fn. 2. Furthermore, prior to certifying the unit, the PLRB conducted an election where the professional employees were given an opportunity to indicate their preference for representation in a separate unit consisting of only professional employees or an overall unit of professional and nonprofessional employees. I therefore find that the PLRB’s certification should be given comity as its proceedings reflect the true desires of unit employees, there were no asserted election irregularities, and there has been no substantial deviation from due process requirements. Allegheny General Hospital, supra, 230 NLRB at 955; We Transport, Inc., 198 NLRB 949 (1972). Accordingly, I find the combined professional and technical employee unit that was certified by the PLRB to be appropriate. B. Self-Determination Election Having found that comity should be accorded the unit certified by the PLRB, the remaining issue is whether a self-determination election should be held to determine whether the petitioned-for employees -- professional medical interpreters and transplant financial coordinators -- desire representation. Petitioner seeks to add these two classifications to the existing non-conforming unit. Therefore, provided that the employees sought to be added share a community of interest with unit employees and are an identifiable distinct segment of the work force so as to constitute an appropriate voting group, a self-determination election is appropriate. St. Vincent Charity Medical Center, supra. Although the Hospital was unwilling to stipulate to

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the appropriateness of the unit, the Hospital does not contest that the petitioned-for employees share a community of interest with employees of the existing bargaining unit or that they are an identifiable distinct segment of the work force. Furthermore, the Hospital does not object to their addition to the existing unit through a self-determination election. In these circumstances, I find that a self-determination election is appropriate. Accordingly, I shall conduct an Armour-Globe election to determine whether professional medical interpreters and transplant financial coordinators wish to be included in the existing unit. As the professional medical interpreters are professional employees, they will also have the opportunity to vote as to whether they wish to be included in a combined unit which includes nonprofessional employees.

IV.

CONCLUSIONS AND FINDINGS

Based upon the entire record in this matter and for the reasons set forth above, I conclude and find as follows: 1. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 2. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction in this case. 3. Employer.

Petitioner is a labor organization that claims to represent certain employees of the

4. A question affecting commerce exists concerning the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 5. In view of the foregoing and the record as a whole, consistent with Section 102.66(d) of the Board’s Rules and Regulations, I find that the following groups of employees of the Employer, if added to the existing unit, would constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Voting Group A All full-time and regular part-time professional medical interpreters employed by the Employer, excluding all other employees, transplant financial coordinators, physicians, nurses, pharmacists, office clerical employees, students, and employees on temporary visas, management level employees, supervisors, first level supervisors, confidential employees and guards as defined in the Act.

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Voting Group B All full-time and regular part-time transplant financial coordinators employed by the Employer, excluding all other employees, professional medical interpreters physicians, nurses, pharmacists, office clerical employees, students, and employees on temporary visas, management level employees, supervisors, first level supervisors, confidential employees and guards as defined in the Act.

V.

DIRECTION OF ELECTION

The National Labor Relations Board will conduct a secret ballot election among the employees in the two voting groups found appropriate above. The ballot for Voting Group A will ask: 1. Do you wish to be included in the same unit as the professional and technical employees employed by the Employer for purposes of collective bargaining? 2. Do you desire to be represented for the purposes of collective bargaining by Temple Allied Professionals, Pennsylvania Association of Staff Nurses and Allied Professionals? If a majority of the Unit A voters vote “Yes” to the first question, indicating their desire to be included in the existing professional and technical employees unit, their votes will be included along with Unit B’s vote in one overall unit. If a majority of valid, commingled ballots are cast for Petitioner, they will be taken to have indicated these employees’ desire to be included in the existing unit currently represented by Petitioner. If a majority of the valid, commingled ballots are not cast for representation, they will be taken to have indicated the medical interpreters’ and transplant financial coordinators’ desire to remain unrepresented. If, on the other hand, the majority of Unit A vote against inclusion, they will not be included in a unit with the professional and technical employees. In that event, their votes on the second question will be counted separately to decide whether they wish to be represented by Petitioner in a separate unit. If a majority of the voters in Unit A do not vote “Yes” to the first question, the Unit B ballots will be counted separately. If a majority of valid ballots are cast by Unit B for Petitioner, they will be taken to have indicated the transplant financial coordinators’ desire to be included in the existing unit currently represented by Petitioner. If a majority of transplant financial coordinators’ valid ballots are not cast for representation, they will be taken to have indicated the transplant financial coordinators’ desire to remain unrepresented.

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A.

Election Details

The election will be held on Thursday, January 28, 2016 from 11:00 a.m. to 2:00 p.m., in Classroom B near the cafeteria at the Hospital’s main campus located at 3501 North Broad Street, Philadelphia, Pennsylvania. B.

Voting Eligibility

Eligible to vote are those in the unit who were employed during the payroll period ending January 9, 2016, including employees who did not work during that period because they were ill, on vacation, or temporarily laid off. Employees engaged in an economic strike, who have retained their status as strikers and who have not been permanently replaced, are also eligible to vote. In addition, in an economic strike that commenced less than 12 months before the election date, employees engaged in such strike who have retained their status as strikers but who have been permanently replaced, as well as their replacements, are eligible to vote. Unit employees in the military services of the United States may vote if they appear in person at the polls. Ineligible to vote are (1) employees who have quit or been discharged for cause since the designated payroll period; (2) striking employees who have been discharged for cause since the strike began and who have not been rehired or reinstated before the election date; and (3) employees who are engaged in an economic strike that began more than 12 months before the election date and who have been permanently replaced. C.

Voter List

As required by Section 102.67(l) of the Board’s Rules and Regulations, the Employer must provide the Regional Director and parties named in this decision a list of the full names, work locations, shifts, job classifications, and contact information (including home addresses, available personal email addresses, and available home and personal cell telephone numbers) of all eligible voters. The Employer must also include in a separate section of that list the same information for those individuals who, according to this direction of election, will be permitted to vote subject to challenge. To be timely filed and served, the list must be received by the Regional Director and the parties by January 26, 2016. The list must be accompanied by a certificate of service showing service on all parties. The Region will no longer serve the voter list. Unless the Employer certifies that it does not possess the capacity to produce the list in the required form, the list must be provided in a table in a Microsoft Word file (.doc or docx) or a file that is compatible with Microsoft Word (.doc or docx). The first column of the list must begin with each employee’s last name and the list must be alphabetized (overall or by department) by last name. Because the list will be used during the election, the font size of the list must be the equivalent of Times New Roman 10 or larger. That font does not need to be used but the font must be that size or larger. A sample, optional form for the list is provided on the NLRB website at www.nlrb.gov/what-we-do/conduct-elections/representation-case-ruleseffective-april-14-2015.

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When feasible, the list shall be filed electronically with the Region and served electronically on the other parties named in this decision. The list may be electronically filed with the Region by using the E-filing system on the Agency’s website at www.nlrb.gov. Once the website is accessed, click on E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. Failure to comply with the above requirements will be grounds for setting aside the election whenever proper and timely objections are filed. However, the Employer may not object to the failure to file or serve the list within the specified time or in the proper format if it is responsible for the failure. No party shall use the voter list for purposes other than the representation proceeding, Board proceedings arising from it, and related matters. D.

Posting of Notices of Election

Pursuant to Section 102.67(k) of the Board’s Rules, the Employer must post copies of the Notice of Election accompanying this Decision in conspicuous places, including all places where notices to employees in the unit found appropriate are customarily posted. The Notice must be posted so all pages of the Notice are simultaneously visible. In addition, if the Employer customarily communicates electronically with some or all of the employees in the unit found appropriate, the Employer must also distribute the Notice of Election electronically to those employees. The Employer must post copies of the Notice at least 3 full working days prior to 12:01 a.m. of the day of the election and copies must remain posted until the end of the election. For purposes of posting, working day means an entire 24-hour period excluding Saturdays, Sundays, and holidays. However, a party shall be estopped from objecting to the nonposting of notices if it is responsible for the nonposting, and likewise shall be estopped from objecting to the nondistribution of notices if it is responsible for the nondistribution. Failure to follow the posting requirements set forth above will be grounds for setting aside the election if proper and timely objections are filed.

RIGHT TO REQUEST REVIEW Pursuant to Section 102.67 of the Board’s Rules and Regulations, a request for review may be filed with the Board at any time following the issuance of this Decision until 14 days after a final disposition of the proceeding by the Regional Director. Accordingly, a party is not precluded from filing a request for review of this decision after the election on the grounds that it did not file a request for review of this Decision prior to the election. The request for review must conform to the requirements of Section 102.67 of the Board’s Rules and Regulations. A request for review may be E-Filed through the Agency’s website but may not be filed by facsimile. To E-File the request for review, go to www.nlrb.gov, select E-File Documents, enter the NLRB Case Number, and follow the detailed instructions. If not E-Filed, the request for review should be addressed to the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, DC 20570-0001. A party filing a request for review must serve

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a copy of the request on the other parties and file a copy with the Regional Director. A certificate of service must be filed with the Board together with the request for review. Neither the filing of a request for review nor the Board’s granting a request for review will stay the election in this matter unless specifically ordered by the Board.

DATED: January 22, 2016

/s/ Harold A. Maier HAROLD A. MAIER Acting Regional Director, Region Four National Labor Relations Board 615 Chestnut Street, Suite 710 Philadelphia, PA 19106

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