Biomedical Resources Corp.

BIOMEDICAL RESOURCES CORP. Biomedical Resources Corporation of Northern Cali- fornia and Office and Professional Employees Union Local 29, AFL-CIO. Case 32-CA-518 May 17. 1978 DECISION AND ORDER By CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on November 3, 1977. by Office and Professional Employees Union Local 29., AFL-CIO, herein called the Union, and duly served on Biomedical Resources Corporation of Northern California, herein called Respondent. the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, issued a com- plaint and notice of hearing on November 15. 1977, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing be- fore an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices. the com- plaint alleges in substance that on September 27, 1977, following a Board election in Case 20-RC 13427, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate;: and that. commencing on or about October 31. 1977, 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 representative, although the Union has requested and is requesting it to do so. On November 27. 1977, Respondent filed its answer to the complaint admitting in part. and denying in part, the allegations in the complaint. On January 3, 1978, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment and a brief in support of the Motion for Summary Judgment, with appendices attached. Subsequently, on January 18, 1978, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Official notice is taken of the record In the representation proceeding. Case 32 RC 10 (formerly 20-RC-13427). 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 LTI Electrorvstentt, Inc., 166 NL.RB 938 (1967). enfd 388 F.2d 683 (C.A. 4. 1968): Golden 4ge Beverage (Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5. 1969): Intertrpe (Co ;. Penello, 269 F Supp. 573 (D.C.Va., 1967): Follerr Corp, 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C A. 7. 1968). Sec. 9(d) of the NLRA, as amended. 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 answer to No- tice To Show Cause, Respondent contends that the Union was improperly certified because supervisors participation in the organizational campaign and misrepresentations by the Union interfered with the employees' choice in the election. The General Coun- sel argues that all material issues have been previous- ly decided and that there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Review of the record herein, including that in Case 32 RC 10(formerlN 2(-RC-13427),discloses that a Board election by secret ballot was conducted on June 4, 1976. pursuant to a Stipulation for Certifica- tion Upon Consent Election, in a unit of all medical technologist employees of Respondent at its San Francisco Bav Area locations, including Oakland. San Francisco, Walnut Creek, Concord, and Alamo, California. The tally of ballots showed that 10 votes were cast for the Union. 9 against, with 2 challenged ballots which were sufficient to affect the outcome of the election. Thereafter, Respondent filed timely ob- jections to conduct affecting the results of the elec- tion.2 On Julv 30. 1976. the Regional Director for Region 20 issued a complaint and notice of hearing in Case 2(-CA 11404 alleging that Respondent had unlawfully discharged the two individuals whose bal- lots were challenged at the election. On August 18. 1976, the Regional Director for Region 20 issued a Report on Objections and Challenged Ballots, rec- ommending that all of Respondent's objections be overruled and that the two challenged ballots be opened and counted. citing International Ladies' (GAr- ment Workers' LUnion, 137 NLRB 1681 (1962). On September 9, 1976, Respondent filed exceptions to that report. On January 19, 1977, the Board issued a EFssentialls. the objectlon, were based. as noted above. on the alleged participation of supersisors engaging in campaigning and related aclllstles for the I mnon. thereb interlfelring lth the emplo ees' free choiice in the election. alleged superslsor; taint of the t nion's shois ng of Interet Ihereb' making the Board's conduct of the election improper: and alleged mal;ri.al misrepresentatoi ns of fact .ancernilg the ciollectlse-harg.aining proces, . union Interlial procedure lnd unrion-emlplpoee rclations and alleged mlsrep- resentations created by the Itnion's failure promptl? to file its resised con- stitution and bylaws with the Department of labor 236 NLRB No. 16 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision, Direction and Order in which it adopted the Regional Director's recommendations to overrule the Respondent's objections but directed that the ballots of the challenged voters not be opened and counted until after a determination was made as to their status as employees or supervisors. On Mav 5. 1977, an Administrative Law Judge issued his Deci- sion in Case 20 CA -11404 in which he found, inter a/ia. that the two individuals whose ballots had been challenged in the election were supervisors within the meaning of the Act. No exceptions were taken to those and other findings and on June 9, 1977, the Board adopted the decision of the Administrative Law Judge, dismissing the complaint in Case 20- CA 11404 in its entirety. On July 5, 1977, Respon- dent filed a request for reconsideration concerning election objections. On July 18, 1977, the Regional Director for Region 20 issued a Supplemental Report on Challenged Ballots and Order Denying Request for Reconsideration in which she recommended that the two challenged ballots be sustained and the Board issue an appropriate certification. On Septem- ber 27, 1977, the Board issued a Supplemental Deci- sion and Certification of Representative in the un- derlying representation matter. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding. We therefore find that Respondent has not raised any) issue which is properly litigable in this unfair labor practice pro- ceeding. Accordingly, we grant the Motion for Sum- mary Judgment. On the basis of the entire record, the Board makes the following: i:INT)IN; S O}: FA(cI I. IF it SIN[.SS ()OF RiS5'ONI)INI Respondent is a California corporation with its principal facility located in Concord, California, and other facilities located in the vicinity of San Francis- co, C('alifornia, where it is engaged in the business of medical laboratory testing. During the past 12 months Respondent derived gross revenues exceed- ing $500,000 and purchased and received supplies valued over $50.000 directly from suppliers located outside the State of California. 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 juris- diction herein. II. TIHE LABOR ORGANIZATION INVOLVED Office and Professional Employees Union Local 29, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 111. '111E UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit fThe following employees of Respondent consti- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All medical technologist employees of the Em- ployer at its San Francisco Bay Area locations, including Oakland, San Francisco, Walnut Creek, Concord, and Alamo, California; exclud- ing all the other employees including, but not limited to, cytotechnologists, guards, and super- visors as defined in the Act. 2. The certification On June 4, 1976, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 20, designated the Union as their representative for the purpose of collective bargain- ing with Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on September 27, 1977, 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's Refusal Commencing on or about October 6, 1977, and at all times thereafter, the Union has requested Respon- dent to bargain collectively with it as the exclusive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about October 31, 1977, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since October 31, 1977, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- 152 BIOMEDICAL RESOURCES CORP. ate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. THE EFFECT OF THE UNFAIR L ABOR PRACI( 1 S I P)N COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close. inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. v. THE REMED' 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. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar-Jac Poultrv Cornmpan, Inc., 136 NLRB 785 (1962): Commerce Companiy d/bha Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964): Bur- neltt Construction Company. 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Biomedical Resources Corporation of North- ern California is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees Union Lo- cal 29, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All medical technologist employees of the em- ployer at its San Francisco Bay Area locations, in- cluding Oakland, San Francisco, Walnut Creek, Concord, and Alamo, California: excluding all the other employees including, but not limited to, cyto- technologists, guards. and supervisors as defined in the Act. constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 27, 1977. the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaininng wvithin the meaning of Section 9(a) of the Act. 5. By refusing on or about October 31. 1977. and at all times thereafter. to hargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the emiployees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain. Respondent has interfered with. restrained, and coerced, and is interfering with, restraining, and coercing. emploeces in the exercise of the rights guaranteed them in Sec- tion 7 of the Act, and therebN has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I ) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORI)ER Pursuant to Section 10(c) of the National l.abor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Biomedical Resources Corporation of Northern Cali- fornia, Oakland, San Francisco. Walnut Creek. Con- cord. and Alamo, California. its officers, agents, suc- cessors, and assigns. shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and con- ditions of employment with Office and Professional Employees Union Local 29. AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All medical technologist employees of the Em- ployer at its San Francisco Bay Area locations, including Oakland, San Francisco, Walnut Creek. Concord, and Alamo. California: exclud- ing all the other employees including, but not limited to, cytotechnologists. guards, and super- visors as defined in the Act. (b) In any like or related manner interfering with. restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Oakland. San Francisco. Walnut Creek, Concord. and Alamo. California, facilities copies of the attached notice marked "Appendix." I Copies of said notice, on forms provided by the Re- gional Director for Region 32. after being duly signed by Respondent's representative, shall be post- ed by Respondent 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. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order. what steps have been taken to comply herewith. In the event Ihat this Order is enforced hb a Judgment of a I nted States ('ourl of Appe.ls. the words in the notice readinig "Posted h ()riider of the Na;tional I.Labor Relations Board" shall read "F'osled Pursuanil to Judgment of the ULnited Stailes (Court of A\ppeals FInforcing an Order of the Nalional I abor Rdellation Board" APPENDIX NoriT E To EMPLOYI[ iS POSTED) BY ORDER Of: 'IHI NAHIONAI. LABOR RI.A-IIONS BOARD An Agency of the United States Government WE NVILL. NSO1 refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Of- fice and Professional Employees Union Local 29, AFL CIO, as the exclusive representative of the employees in the bargaining unit described below. Wi WiLli NOt in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. Wi: wll. upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All medical technologist employees of the Employer at its San Francisco Bay Area loca- tions, including Oakland, San Francisco. Wal- nut Creek, Concord, and Alamo. California: excluding all the other employees including, but not limited to, cytotechnologists, guards. and supervisors as defined in the Act. BloMiEDi( Ar i RESOURCES CORPORATION OF NORI HERN CALIFORNIA