Berz Ambulance & Oxygen Service

BERZ AMBULANCE AND OXYGEN SERVICE Berz Ambulance and Oxygen Service, Inc.; James Medicar, Inc. and Local 25, Service Employees International Union, AFL-CIO-CLC. Case 13- CA-20038 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELI.O Upon a charge filed on June 17, 1980, by Local 25, Service Employees International Union, AFL- CIO-CLC, herein called the Union, and duly served on Berz Ambulance and Oxygen Service, Inc.; James Medicar, Inc., herein called Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, issued a complaint on June 25, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on June 5, 1980, following a Board election in Case 13-RC-15322, the Union was duly certified as the exclusive col- lective-bargaining representative of Respondent's employees in the unit found appropriate; ' and that, commencing on or about June 13, 1980, and at all times thereafter, Respondent has refused, and con- tinues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representa- tive, although the Union has requested and is re- questing it to do so, and Respondent has refused to provide the Union with information concerning names, job classifications, wages, and hours of work for all employees in the bargaining unit. On June 30, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 21, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 24, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause Official notice is taken of the record in the representation proceed- ing, Case 13-RC-15332, as the term "record" is defined in Sees 102 68 and 102 69(g) of the Board's Rules and Regulations, Series 8, as amended See L7'V Electrosystrems. Inc., 166 NLRB 938 (1967). enfd 388 F2d 683 (4th Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). enfd 415 F.2d 26 (5th Cir. 1969) Interrmpe C 'v Penello. 269 F.Supp 573 (DCVa 1967): Follel Corp, 164 NLRB 378 (1967), enfd 397 F2d 91 (7th Cir 1968) Sec 9(d) of the NLRA, as amended 252 NLRB No. 87 why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and its Memoran- dum in Opposition to General Counsel's Motion for Summary Judgment, Respondent denies that the Union is the exclusive representative in an ap- propriate unit; that the information requested is necessary for the Union's performance of its func- tion as exclusive representative; and that its refusal to bargain and to furnish information is to test and obtain court review of the Board's certification. Respondent contends that the challenged ballots of William Karras and Timothy Gibbons, sons of the corporation's two stockholders, raise numerous fac- tual issues and inferences regarding their communi- ty of interests which cannot be resolved without affording Respondent an opportunity for a hearing and cannot be resolved by a Motion for Summary Judgment; and that the Motion for Summary Judg- ment should be denied and that a notice of hearing be issued. The General Counsel contends that all material issues have been previously determined and that there are no litigable issues of fact requir- ing a hearing. We agree with the General Counsel. Our review of the record herein, including that in the representation proceeding Case, 13-RC- 15322, establishes that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on December 28, 1979, which the Union won.2 Both the Union and Respondent filed timely objections to conduct affecting the results of the election. The Regional Director overruled both the Union and Respondent's objections in their en- tirety. The ballot of Marc Merel was challenged by Respondent on the grounds that he was no longer an employee at the time of the election. The ballot of Mary Pena was challenged by the Board agent because her name was not on the list of eligible voters. The ballots of Timothy Gibbons, William Karras, and Jerry Smalec were challenged by the Union as they allegedly were relatives of an owner. The ballots of Madelyn Herbert and Isabella Mag- liano were challenged by the Union because they : The amended tally was 310 for, and 27 against. the Unon: there "ere 7 challenged ballots, a sufficient number to affect the results 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD allegedly were hired after the eligibility date. After investigation, the Regional Director, on March 7, 1980, issued his Report on Challenges and Objec- tions in which he overruled Respondent's objec- tions and the Union's objections in their entirety, and sustained the challenges to the ballots cast by Marc Merel, Mary Pena, Timothy Gibbons, Wil- liam Karras, Madelyn Herbert, and Isabella Mag- liano, and overruled the challenge to the ballot cast by Jerry Smalec. Inasmuch as the Regional Direc- tor sustained the challenges except to the ballot cast by Jerry Smalec, he found that such challenge was no longer determinative and, accordingly, he recommended that all objections be overruled and the Union certified. Respondent filed timely excep- tions to the report. On June 5, 1980, the Board issued a Decision and Certification of Representa- tive in which it certified the Union after adopting the Regional Director's findings and recommenda- tions that all objections be overruled and sustaining the challenges to six of the seven challenged ballots in the election. The Board thereby found in effect that the objections of the Union and of the Re- spondent, and the challenged ballots, did not war- rant overturning the election, and also that they did not raise substantial or material issues warrant- ing a hearing. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, Berz Ambulance and Oxygen Serv- ices, Inc.; and James Medicar, Inc., a State of Illi- nois corporation, is engaged in the business of am- 3 See Pittsburgh Plate Glass Co. v NL.R.B., 313 U.S. 146. 162 (1941) Rules and Regulations of the Board, Secs. 102.67(f) and 102.6 9 {c) bulance and medicar services with its principal place of business in Chicago. The two companies have been affiliated business enterprises with common officers, ownership, directors, manage- ment, and supervision; have formulated and admin- istered a common labor policy affecting employees of said operations; have shared common premises and facilities; have interchanged personnel with each other; and have held themselves out to the public as a single integrated business enterprise. As stipulated by the parties we find that Berz Ambu- lance and Oxygen Services, Inc., and James Medi- car, Inc., constitute a single employer within the meaning of the Act. In the course and conduct of its business operations at the Chicago, Illinois, fa- cility, Respondent received gross revenues in excess of $500,000 and purchased and received ma- terials valued in excess of $50,000 which materials were shipped directly from points outside the State of Illinois. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATION INVOLVED Local 25, Service Employees International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All ambulance and medi-car drivers and atten- dants, dispatchers, maintenance employees and mechanics of the Employer now located at 1633 North Cicero, Chicago, Illinois, but ex- cluding all office clericals, professional em- ployees, guards and supervisors as defined in the Act. 2. The certification On December 28, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 13, designated the Union as their representative for the purpose of collective bargaining with Respondent. 636 BERZ AMBULANCE AND OXYGEN SERVICE The Union was certified as the collective-bar- gaining representative of the employees in said unit on June 5, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent' Refusal Commencing on or about June 13, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about June 13, 1980, and continuing at all times thereafter to date, Respondent has re- fused, and continues to refuse, to recognize and bargain with the Union as the exclusive representa- tive for collective bargaining of all employees in said unit. Commencing on or about June 13, 1980, Respondent has failed and refused to provide the Union with the information it requested concerning names, job classifications, wages, and hours of work for all employees in the bargaining unit. Accordingly, we find that Respondent has, since June 13, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and to provide the Union with the in- formation it requested, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act.4 IV. 'HIE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. I Member Penello did not participate in the Board's Decision and Cer- tification issued on June 5, 1980. in which the Board adopted the Region- al Director's findings and recommendations The Regional Director over- ruled Employer's Objection I. that. on the day of the election, an em- ployee distributed copies of campaign literature in Which the employees expressed the belief that the Employer had hired an "anti-union manage- ment consultant firm" which the Employer contended was untrue and constituted a misrepresentation The Regional Director cited Hollvwood Ceramics Company. Incr. 140 NLRB 221 (1962) In overruling the Em- ployer's Objection I, Member Penello would have done so for the rea- sons set forth in Shopping Kart Ioxd Markt, 228 NLRB 1311 (1977). See his dissenting opinion in Gcnral Knit of California, 239 NLRB 619 (1978). V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement.5 We shall also order Respondent to cease and desist from refusing to provide the Union with the information it requested concerning names, job classifications, wages, and hours of work for all employees in the bargaining unit and, upon request, provide the Union with said informa- tion. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCILUSIONS OF LAW 1. Berz Ambulance and Oxygen Service, Inc.; James Medicar, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 25, Service Employees International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All ambulance and medi-car drivers and atten- dants, dispatchers, maintenance employees and me- chanics of the Employer now located at 1633 North Cicero, Chicago, Illinois, but excluding all office clericals, professional employees, guards and 5 The Union filed a motion for additional relief dated August 19, 1980, on grounds that the Board should enter an order requiring, in addition to the traditional cease-and-desist relief, that Respondent be required to take certain affirmative action in light of the flagrant violation and frivolous nature of the grounds upon which Respondent bases its "technical" refus- al to bargain. Respondent filed a memorandum in Opposition to Charging Party's Motion for Additional Relief on August 29, 1980. We deny the Union's motion for extraordinary relief on the ground that, while we find herein that Respondent has not raised nay issue which is properly litiga- ble in this unfair labor practice proceeding, we also find no basis for holding its pleadings in opposition to the Motion for Summary Judgment frivolous 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since June 5, 1980, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 13, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about June 13, 1980, and at all times thereafter to provide the Union with in- formation it requested concerning names, job classi- fications, wages, and hours of work for all employ- ees in the bargaining unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusal to bargain, Respond- ent has interefered with restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Berz Ambulance and Oxygen Service, Inc.; James Medicar, Inc., Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 25, Service Employees International Union, AFL-CIO-CLC, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All ambulance and medi-car drivers and atten- dants, dispatchers, maintenance employees and mechanics of the Employer now located at 1633 North Cicero, Chicago, Illinois, but ex- cluding all office clericals, professional em- ployees, guards and supervisors as defined in the Act. (b) Refusing to provide the Union with informa- tion it has requested concerning names, job classifi- cations, wages, and hours of work for all employ- ees in the bargaining unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Upon request, provide the Union with infor- mation concerning names, job classifications, wages, and hours of work for all employees in the bargaining unit. (c) Post at its Chicago, Illinois, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 6 In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE TO EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 25, Service Employees Internation- al Union, AFL-CIO-CLC, as the exclusive 638 BERZ AMBULANCE AND OXYGEN SERVICE representative of the employees in the bargain- ing unit described below,. Wti WIl. NOT refuse to provide the Union with information it requests concerning names, job classifications, wages, and hours of work for all employees in the bargaining unit. WE Wl I NOV in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WI.l., upon request, provide the Union with information concerning names, job classi- fications, wages, and hours of work for all em- ployees in the bargaining unit. WI wi.y, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below. with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All ambulance and medi-car drivers and at- tendants, dispatchers, maintenance employ- ees and mechanics of the Employer now lo- cated at 1633 North Cicero, Chicago, Illi- nois, but excluding all office clericals, pro- fessional employees, guards and supervisors as defined in the Act. BERZ AMBULANCE AND OXYGEN SERVICE, INC.; JAMES MEDICAR, INC. 639