Michigan Hospital Service

MICHIGAN HOSPITAL SERVICE Michigan Hospital Service and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 7-CA-9334 May 30, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY Upon a charge filed on February 28, 1972, 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 General Counsel of the National Labor Relations Board, by the Regional Director for Region 7, issued a complaint on March 6, 1972, 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 February 10, 1972, following a Board election in Case 7-RC-10897 the Union was duly certified as the exclusive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; i and that, commencing on or about February 23, 1972, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing representative, although the Union has requested and is requesting it to do so. On March 13, 1972, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. The Respondent admits, in sub- stance, all the factual allegations of the complaint, including its refusal to recognize and bargain with the Union, but denies the appropriateness of the unit, the validity of the Union's certification, and the Union's status as exclusive bargaining representative. On March 27, 1972, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 30, 1972, the Board issued an order transferring the proceeding to the Board and a Notice To Show i Official notice is taken of the record in the representation proceeding, Case 7-RC-10897, 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), 191 Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause, called Statement in Opposition to Order Transferring Proceedings to Board, and a Submis- sion of New Evidence in Support of Employers Opposition to Order Transferring Proceedings to the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 Respondent's answer admits, in substance, all the factual allegations of the complaint, including its refusal to recognize and bargain with the Union, but denies the appropriateness of the unit, the validity of the Union's certification, and the Union's status as exclusive bargaining representative of the employees in the unit. Counsel for the General Counsel argues that the Respondent, through its answer and its response in which it reargues the unit issues, is attempting to relitigate the same issues which were raised and adjudicated in Case 7-RC-10897. Ac- cordingly, he contends that these issues may not be relitigated here. We agree. Following a representation hearing in Case 7-RC-10897, the Regional Director, in his Decision and Direction of Election of January 4, 1972, found that a unit limited to office clerical employees of the Respondent's Northside district office was an appro- priate bargaining unit, despite the Respondent's contention that such a single office unit was too narrow in scope. The Respondent filed a timely request for review, raising substantially the same issues as it did before the Regional Director. On January 21, 1972, the Board denied the request as raising no substantial issues warranting review. In the representation election held on February 2, 1972, the Union received a majority of the votes cast. No objections to the conduct of the election were filed, and the Union was certified by the Regional Director as the exclusive representative on February 10, 1972. 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 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 The complaint inadvertently alleged the date of the certification as October 4, 1971. 197 NLRB No. 16 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which, were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceeding 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, except as noted in footnote 3, previously unavailable evidence,3 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 properly 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 The Respondent is a nonprofit Michigan corpora- tion engaged in the marketing and sale of prepaid hospitalization and surgical protection under the name of Blue Cross and Blue Shield to both group and individual subscribers. In the course of its business operations the Respondent maintains vari- ous offices which are located throughout the State of Michigan, including a district office located at 13859 East Eight Mile Road, Warren, Michigan, known as the Northside office. That office is the only facility involved in this proceeding. During the year ending December 31, 1971, a representative period, the Respondent performed services valued in excess of $500,000 in the course and conduct of its business operations and received premiums valued in excess of $50,000 from insurance policies in the State of Michigan with General Motors Corporation, which annually sells and ships products valued in excess of $50,000 from its Michigan plants directly to points 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 2 See Pittsburgh Plate Glass Co v N L R B, 313 US 146, 162 ( 1941), Rules and Regulations of the Board, Secs. 102 67(f) and 102 69(c) 3 On April 27, 1972, the Respondent filed a "Submission of New Evidence in Support of Employers Opposition to Order Transferring Proceedings to the Board" in which it submits evidence not previously available to it and requests a hearing to correct the allegedly erroneous conclusions of the Regional Director in his Decision and Direction of Election with respect to the transfer of employees between district offices and with respect to the separate and distinct location of the Northside district office Thereafter, the General Counsel filed an opposition to this submission This evidence shows that in April 1972 a job posting for a vacant position in the Northside district office resulted in bids by only 2 it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: 11 All office clerical employees employed by the Respondent at its district office located at 13859 East Eight Mile Road, Warren, Michigan; but excluding all sales representatives, technical employees, managerial employees, confidential employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On February,2, 1972, 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 bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on February 10, 1972, 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 February 14, 1972, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Corn- office clericals from two district offices and by 10 main office and 2 current Northside office employees In its request for review of the Regional Director's Decision and Direction of Election, the Respondent had specifically attacked the Regional Director's conclusions as to interoffice transfers and the separate identity of the Northside office As indicated above, we denied the request for review as raising no substantial issues warranting review We have considered the additional evidence submitted by the Respondent in the light of the facts presented to us in the request for review and find that it is not sufficient to warrant any change in the Regional Director's conclusions As a hearing therefore would serve no practical purpose, we shall deny it MICHIGAN HOSPITAL SERVICE 193 mencing on or about February 23, 1972, 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 employees in said unit. Accordingly, we find that the Respondent has, since February 23, 1972, 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, Respon- dent 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 opera- tions 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 commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engagec' 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 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 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 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. 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, Aero- space and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act. 3. All office clerical employees employed by the Respondent at its-district office located at 13859 East Eight Mile Road, Warren, Michigan; but excluding all sales representatives, technical employees, mana- gerial employees, confidential employees, profession- al 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 February 10, 1972, 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 February 23, 1972, 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, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in 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, 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 International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive bargaining representative of its employees in the following appropriate unit: All office clerical employees employed by the Respondent at its district office located,-aT-13859 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD East Eight Mile Road, Warren; Michigan; but excluding all sales representatives, technical employees, managerial employees, 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: (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 Northside district office located in Warren, Michigan, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's represent- ative, 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 writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 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 Inter- national 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 representa- tive 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 understanding in a signed agree- ment. The bargaining unit is: All office clerical employees employed by the Respondent at its district office located at 13859 East Eight Mile Road, Warren, Michigan; but excluding all sales representa- tives, technical employees, managerial em- ployees, confidential employees, profession- al employees, guards and supervisors as defined in the Act. Dated By MICHIGAN HOSPITAL SERVICE (Employer) (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 compli- ance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200.