Michigan Hospital Service

MICHIGAN HOSPITAL SERVICE 33 Michigan Hospital Service and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW). Case 7-CA-8900 November 5, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on August 17, 1971, by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), herein called the Union, and duly served on Michigan Hospital Service, herein called the Respon- dent, the Acting General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on August 19, 1971, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices 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, complaint, and notice of hearing, before a Trial Examiner were duly served on the parties to this ,proceeding. With respect to the unfair labor practices, the complaint alleges, in substance, that on August 6, 1971, following a Board election in Case 7-RC-10568, 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 August 12, 1971, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively' with the Union as the exclusive bargaining representative. On August 27, 1971, Respondent filed its answer, to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits, in substance, all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union, but denies the appropriate- ness of the unit and the validity of the certification. On September 2, 1971, the Union filed with the Board a Motion for Judgment on the Pleadings, and on September 10, 1971, counsel for the i General Counsel filed with the Board a Motion To ransfer Case to and Continue Proceeding Before the Board and for Judgment on the Pleadings, both of which shall be treated as Motions for Summary Judgment. The motions, herein considered together, allege that there are no factual issues in dispute which would warrant a hearing and that the Respondent has raised no issues in its answer which were not previously considered and decided in Case 7-RC-10568; and they move that the Board make findings of fact, conclusions of law, and a remedial order consistent with the allegations of the complaint. Subsequently, on September 16, 1971, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. The Respondent failed to file ,a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with 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 As reflected above, the Respondent's answer admits, in substance, all of the factual allegations of the complaint, including its refusal to recognize and bargain with the Union which had been certified as the collective-bargaining representative of the em- ployees described in the complaint. Affirmatively, the Respondent raises defenses relating to the appropri- ateness of the unit and the validity of the certification. The Respondent through its answer is attempting to relitigate the same issues which it raised in the representation proceeding in Case 7-RC-10568 which was denied by the Board in its Request for Review on July 27, 1971. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a, respondent in a proceeding alleging 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.2 All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered 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 the Respondent has not raised any issue 1 Official notice is taken of the record in the representation proceeding, 269 F.Supp. 573 (D C. Va., 1967); Follett Corp, 164 NLRB 378, enfd 397 Case 7-RC-10568, as the term "record" is defined m Secs. 102.68 and F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. 102.69(f) of the Board's Rules and Regulations, Series '8, as amended. See 2 See Pittsburgh Plate Glass Co. v. N.L KB., 313 U.S. 146, 162 (1941); LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). 1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v, Penello, 194 NLRB No. 7 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which is properly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the General Counsel's Motion for Summary Judgment and there- fore find it unnecessary to rule on the Union's Motion for Summary Judgment. On the basis of the entire record, the, Board makes the following: FINDINGS OF FACT tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All sales representatives of the Employer's Mar- keting Division, employed by the Employer at its Westside district office located in Detroit, Michi- gan; but excluding all office clerical employees, professional employees, confidential employees, guards and supervisors as defined in the Act. 1. THE BUSINESS OF THE RESPONDENT The Respondent is, and has been at all times material herein, a nonprofit corporation duly organ- ized under, and existing by virtue of, the laws of the State of Michigan. At all times material herein, Respondent has been engaged in the marketing and sale of prepaid hospitalization and surgical protection under the name of "Blue Cross" and "Blue Shield" both to, group and individual subscribers. In the course of its business operations, Respondent main- tains various offices which are located throughout the State of Michigan, including a district office located at 24350 Joy Road, Detroit, Michigan, known as the Westside office. The Westside office is the only facility involved in this proceeding. During the year ending December 31, 1970, which period is represent- ative of its operations during all times material hereto, Respondent, in the course and conduct of its business operations, performed services valued in excess of $500,000. During the same period, it received premi- ums valued in excess of $50,000 from insurance policies with General Motors Corporation, located in the State of Michigan, which company annually sells and ships products valued in excess of $50,000 from its Michigan plants directly to points located outside the State of Michigan. We find, on the basis of the foregoing, that Respondent 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. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aeros- pace and Agricultural Implement Workers of Ameri- ca, (UAW), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent consti- 2. The certification On July 29, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 7, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on August 6, 1971, 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 August 12, 1971, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employ- ees in said unit. Accordingly, we find that the Respondent has, since August 12, 1971, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate 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 (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. 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 MICHIGAN HOSPITAL SERVICE 35 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 appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the Union as the recogniz- ed bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419,1421, enfd. 350 F.2d 57 (C.A. 10). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Michigan Hospital Service is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Ae- rospace and Agricultural Implement Workers of America, (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. All sales representatives of the Employer's Marketing Division, employed by the Employer at its Westside district office located in Detroit, Michigan; but excluding all office clerical employees, profession- al employees, confidential employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since August 6, 1971, the above-named labor 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 bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 12, 1971, 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 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, employees in the exercise of the rights guaranteed to them in 3 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 be changed to read "Posted Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Michigan Hospital Service, its officers, agents, succes- sors, 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 International Union, United Automobile, Aerospace and Agricultural Workers of America, (UAW), as the exclusive bargaining repre- sentative of its employees in the following appropriate unit: All sales representatives of the Employer's Mar- keting Division, employed by the Employer at its Westside district office located in Detroit, Michi- gan; but excluding all office clerical employees, professional employees, confidential employees, guards and supervisors 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. 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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Westside district office located in Detroit, Michigan, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted 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 7, in Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES 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 Interna- tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (UAW), as the exclusive representative of the employees in the bargaining unit described below. WE WILL 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. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, 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. The bargaining unit is: All sales representatives of the Employer's Marketing Division, employed by the Em- ployer at its Westside district office located in Detroit, Michigan;' but excluding all office clerical employees, professional employees, confidential employees, guards and supervi- sors as defined in the Act. MICHIGAN HOSPITAL SERVICE (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48226, Telephone 313-226-3200.