Medical Ancillary Services, Inc.

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Medical Ancillary Services , Inc. and Office and Professional Employees International Union, Local 10, AFL-CIO. Case 7-CA-9062 February 1, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on October 27, 1971, by Office and Professional Employees International Union, Lo- cal 10, AFL-CIO, herein called the Union, and duly served on Medical Ancillary Services, Inc., herein called the Respondent, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for Region 7, issued a complaint on October 29, 1971, against Respondent, alleging that Respondent had en- gaged 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 Exam- iner were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on October 12, 1971, following a Board election in Case 7-RC-10583 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 27, 1971, and at all times there- after, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Un- ion has requested and is requesting it to do so. On November 5, 1971, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On November 9, 1971, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 15, 1971, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, designated as a Brief in Opposition. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- ' Official notice is taken of the record in the representation proceeding, Case 7-RC-10583, as the term "record' is defined in Secs 102 68 and 102 69(f) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co, 167 NLRB 151, Intertype Co v Penello, 269 F Supp. 573 (D C. Va, 1967), Follett Corp., 164 NLRB 378, enfd 397 F 2d 91 (C A 7, 1968), Sec 9(d) of the NLRA 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 The record herein establishes that, pursuant to a Stipulation for Certification Upon Consent Election in Case 7-RC-10583, an election by secret ballot was conducted in which a majority of the Respondent's employees in the stipulated unit selected the Union as their representative for the purpose of collective bar- gaining with Respondent. Thereafter, the Respondent filed timely objections to conduct affecting the results of the election. The objections alleged in substance that, immediately prior to the election, two employee sup- porters of the Union made material misrepresentations to the employees which the Respondent was unable to effectively neutralize. One employee stated that a sick employee was not going to receive disability benefits to which she was entitled. The second employee stated that: (1) The Respondent deliberately "screwed up" the sick employee's claim, (2) another employee was or- dered to vote under threat of discharge by the Respond- ent, (3) an employee was not paid for a day off and no reason given, and finally (4) some employees had not been paid for overtime work. After investigation and considering the evidence sub- mitted by the Respondent, the Regional Director is- sued on August 3, 1971, his Report and Recommenda- tions on Objections in which he found that the alleged misrepresentations were not a substantial departure from the truth and therefore did not warrant setting aside the election, and that, absent agency, the Union was not responsible for the statements. Accordingly, he recommended to the Board that the objections be over- ruled in their entirety and the Union certified. On August 4, 1971, the Respondent filed a Motion for Reconsideration to which were attached not only the affidavits submitted to the Regional Director but also several others including one which alleged that the second union supporter was a union agent when he made the statements to the employees. On August 5, 1971, the Regional Director denied the motion, finding that the additional evidence proffered was untimely submitted and that, assuming the evidence established union agency, the statements made by the agent were not a substantial departure from the truth and therefore did not have a substantial impact upon the outcome of the election. The Respondent subsequently filed timely exceptions and submitted therewith the old as well as some new affidavits to support its objections as a basis for setting aside the election and vacating the Union's certifica- 195 NLRB No. 50 MEDICAL ANCILLARY SERVICES, INC. 291 tion. Having considered the Respondent's submission and the entire record, the Board on October 12, 1971, issued its Decision and Certification of Representative adopting the Regional Director's findings and recom- mendations and certifying the Union because, in its opinion, the exceptions raised no substantial issue of fact or law which would warrant reversal of the Re- gional Director. The Respondent's answer to the complaint and re- sponse to the Notice To Show Cause, which now spe- cifically argues that its objections and exceptions raised material and substantial issues warranting a hearing, merely reiterate the issues previously raised and consid- ered in the representation case.2 It is well settled that in the absence of newly discov- ered or previously unavailable evidence or special cir- cumstances 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.' All issues raised by the Respondent in this proceed- ing were or could have been litigated in the prior repre- sentation 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 which is prop- erly litigable in this unfair labor practice proceeding. We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is a Michigan Corporation which has maintained, at all times material herein, its principal office and place of business at 5600 Crooks Road, Troy, Michigan. It is and has been engaged in the business of providing management services for physicians and hos- pitals from its Troy, Michigan, place of business. Dur- ing the fiscal year ending June 30, 1971, a representa- tive period, Respondent, in the course and conduct of its business operations, performed services valued in excess of $500,000 of which services valued in excess of $50,000 were performed for clients located in States other than the State of Michigan. ' The Board determined that the Respondent's exceptions raised no sub- stantial issue of fact or law warranting reversal of the Regional Director and that determination necessarily decided that an evidentiary hearing was not required ' See Pittsburgh Plate Glass Co. v. NL R.B, 313 U S 146, 162 (1941); Rules and Regulations of the Board , Secs 102 67(t) and 102 69(c) We find, on the basis of the foregoing, that Respond- ent 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 effectu- ate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Office and Professional Employees International Un- ion, Local 10, AFL-CIO, 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- tute a unit appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: All office and clerical employees at the Re- spondent's 5600 Crooks Road, Troy, Michigan, place of business, including evaluators, billing data typists, auto typists, file clerks, computer opera- tors, mailroom, stockroom, and communications employees, but excluding confidential employees, professional employees, guards, and supervisors as defined in the Act. 2. The certification On July 8, 1971, a majority of the employees of Respondent in said unit, in a secret ballot election con- ducted under the supervision of the Regional Director for Region 7, designated the Union as their representa- tive 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 October 12, 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 October 12, 1971, and at all times thereafter, the Union has requested the Re- spondent 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 27, 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 bar- gaining of all employees in said unit. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, we find that the Respondent has, since October 27, 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 Respondent set forth in section III, above, occurring in connection with its operations de- scribed 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 commerce 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 request, bar- gain collectively with the Union as the exclusive repre- sentative of all employees in the appropriate unit, and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the appropri- ate 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 begin- ning on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a 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. Medical Ancillary Services, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local 10, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All office and clerical employees at the Respond- ent's 5600 Crooks Road, Troy, Michigan, place of busi- ness, including evaluators, billing data typists, auto typists, file clerks, computer operators, mailroom, stockroom, and communications employees, but ex- eluding confidential employees, professional em- ployees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since October 12, 1971, the above-named labor organization has been and now is the certified and ex- clusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargain- ing within the meaning of Section 9(a) of the Act. 5. By refusing on or about October 27, 1971, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Respond- ent 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 in- terfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engag- ing 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 meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Medical Ancil- lary Services, Inc., 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 Office and Professional Employees International Union, Local 10, AFL-CIO, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All office and clerical employees at the Re- spondent's 5600 Crooks Road, Troy, Michigan, place of business, including evaluators, billing data typists, auto typists, file clerks, computer opera- tors, mailroom, stockroom, and communications employees, but excluding confidential employees, professional 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: MEDICAL ANCILLARY SERVICES, INC. 293 (a) Upon request, bargain with the above-named la- bor organization as the exclusive representative of all employees in the aforesaid appropriate unit with re- spect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. (b) Post at its Troy, Michigan, place of business co- pies of the attached notice marked "Appendix."4 Co- pies of said notice, on forms provided by the Regional Director for Region 7 after being duly signed by Re- spondent's representative, shall be posted by Respond- ent immediately upon receipt thereof, and be main- tained 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 writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. Local 10, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 Sec- tion 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All office and clerical employees at the 5600 Crooks Road, Troy, Michigan, place of business, including evaluators, billing data typists, auto typists, file clerks, computer op- erators, mailroom, stockroom, and communi- cations employees, but excluding confidential employees, professional employees, guards, and supervisors as defined in the Act. ' In the event 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 PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 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 Office and Professional Employees International Union, MEDICAL ANCILLARY SERVICES, INC (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.