Syncor International Corp.

408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Syncor International Corporation and Highway Truck Drivers and Helpers, Local 107, a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers ' of America. Case 4-CA-15468 10 December, 1986 DECISION AND ORDER BY MEMBERS JOHANSEN , BABSON, AND STEPHENS On 6 August 1986 Administrative Law Judge David S. Davidson issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings,' findings, and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Syncor International Corporation, Philadelphia, Pennsylva- nia, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I On 4 June 1986 the Regional Director administratively dismissed the Respondent's petition for amendment of certification in Case 4-AC-67. Thereafter the Respondent filed a request for review of the dismissal of its petition. By telegraphic Order dated 29 July 1986, the Board denied the Respondent's request for review. Thus the Respondent's third affirm- ative defense claiming that the representation proceeding generated by Case 4-AC-67 is the only appropriate forum to determine the issues raised by this case is moot. Dawn Miller-Abdulmalilc, Esq., for the General Counsel. Don T Carmody, Esq. (Carmody & Dirienzo), of New York, New York, for the Respondent. Thomas H. Kohn, Esq. (Sagot & Jennings), of Philadel- phia, Pennsylvania, for the Charging Party. DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge. The charge in this case was filed on 4 December 1985 and the complaint issued on 28 January 1986. The hearing was held on 16 April 1986. The principal issue is wheth- er Respondent' unlawfully refused to, bargain with the I The charge and complaint named Nuclear Pharmacy, Inc as Re- spondent. After issuance of the complaint Respondent reorganized, and its correct legal name is now Syncor International Corporation. The case caption has been amended to reflect the change Union following union proposals in contract negotiations to alter the composition of a certified bargaining unit. On the entire record in this case, including my obser- vation of the witnesses and their demeanor, and after consideration of the briefs filed by the General Counsel and Respondent, I make the following FINDINGS AND CONCLUSIONS 1. JURISDICTION Respondent, a New Mexico corporation, is engaged in the preparation and sale to hospitals of "radio pharma- ceuticals" at a Philadelphia, Pennsylvania facility where it, annually purchases and receives products valued in excess of $50,000 directly from points outside the Com- monwealth of Pennsylvania. Respondent admits and I find that it is an employer engaged in commerce and that the Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The representation election On 8 April 19852 the Union filed a representation peti- tion seeking an election in a unit of all full-time and reg- ular part-time truckdriving employees of Respondent. On 25 April the parties entered into a Stipulation for Certifi- cation Upon Consent Election in which they agreed that the appropriate unit-would include "all full-time and reg- ular part-time driver employees and technicians em- ployed by the Employer" excluding all other employees. On 24' May the electionwas held. There were 10 eligible voters of -whom 8 were full-time drivers and two were full-time technicians. There were no part-time drivers employed at the time. Of the 10 eligible voters, 6 voted for the Union and 4 egainst, and on 4 June the Union was certified as the representative of the agreed-upon unit. 2. The negotiations and union proposals to modify the unit The parties met to bargain four times on 28 August, 30 September, and 16 and 17 October. At the first negotiat- ing session the parties agreed to resolve all noneconomic issues before discussing economic issues. The Union gave its contract proposal to Respondent, and Principal Com- pany Negotiator William Adams said he would ' be pre- pared to review the Union's proposal in detail at the next meeting. That proposal provided among other things in its article 30: "The Company will not use part-timers." During the first meeting, Union Negotiator Joseph Ferla stated that the Union did not represent part-timers. At the, time of the election and that meeting, Respondent employed no part-time drivers. One was hired in early September and a second about 2 weeks later on 23 Sep- tember. 3 2 All dates are in 1985 unless otherwise indicated. a They were no longer employed by Respondent at the time of the hearing. 282 NLRB No. 63 SYNCOR INTERNATIONAL CORP. 409 At the next negotiating session on 30 September, the parties reviewed the Union's proposal and agreed to sev- eral noneconomic items. At this or the earlier session, Adams asked Ferla to explain what he meant by article 30. Ferla replied that the Union did not want part-time employees in the unit because there was nothing the Union could do for them and part-time employees would take work away from full-time employees , in the unit. During this meeting Ferla also stated that the Union would probably "give" the tecllmicians back to Respond- ent but that it would cost Respondent . Ferla said that the only reason Respondent wanted technicians in the unit was to get votes, but that the Union beat Respondent at its own game. Ferla also said that the Union did not 'want the technicians in the unit and that they did not want to be in it. During one of the two remaining negotiating sessions on 16 and 17 October, Ferla again stated that the Union did not want the technicians and might swap the techni- cians for Dale Russell, a head driver who wanted to be in the unit.4 By the end of the last negotiating session the parties had reached agreement on some noneconomic issues, but other noneconomic and economic issues remained unre- solved. Respondent had neither accepted nor rejected the Union's proposals with respect to the part-time driv- ers and technicians. The parties have stipulated that at no time did the Union insist to impasse with respect to its proposals not to represent part-time drivers and technicians or any other subject of negotiaxions. 3. Respondent's refusal to bargain At some point after the 17 October bargaining session, Adams notified the Union that he was no longer repre- senting Respondent in the negotiations. The Union then contacted Respondent's attorney and made repeated oral requests for further bargaining. At all times since the first oral request, Respondent refused to negotiate further with the Union. On 14 January "1986, the Union's attor- ney sent Respondent's attorney a letter stating: On behalf of Teamsters Local Union No. 107, I wish to make our position clear with regard to the Union's role in negotiations. At no time has Local 107- refused, nor does it currently refuse, to negoti- ate on behalf of any persons or positions for whom it was certified as the exclusive bargaining repre- sentative. Any offers which Mr. Ferla may have made to relinquish such bargaining rights were merely that, offers, and not refusals. & The only evidentiary conflict in this case relates to a telephone con- versation between Ferla and Adams aftei the second negotiating sessions and before the last two sessions. Ferla testified that after telling Adams that Union President Cimino was on his back because the negotiations were taking so long, the topic of the technicians came up, that Ferla told Adams that he was going to sell ; them back to Adams probably for higher wages, and that Adams laughed in response. Adams testified that after mentioning that he had talked to Cimino, Ferla stated emphatically that the Union did not want the technicians Whichever version is cor- rect, this conversation adds nothing material to what was said in'the ne- gotiations proper before and after the telephone conversation Thereafter, Respondent continued to refuse to bargain. 4. The petition for amendment of certification As set forth above, the Union filed the refusal-to-bar- gain charge in this case on 4 December . The Regional Director issued the complaint on 28 January 1986 setting 16 April 1986 as the date of the hearing . Respondent filed its answer on 7 February 1986. On 11 April 1986 Respondent filed a petition for amendment of certification in Case 4-AC-67 and concur- rently requested that the hearing on the complaint be postponed pending disposition of the petition. On 14 April the Regional Director denied the request for post- ponement, and on 16 April ' the hearing proceeded as scheduled. B. Concluding Findings The sole issue is whether the Union's proposals to eliminate part-time drivers and technicians from cover- age of the contract relieved Respondent of any further obligation to bargain with the Union. The General Counsel contends that the Union's pro- posals were just that-proposals, that the Union never insisted on them to the point of impasse, that Respondent never even rejected them, and that Respondent's obliga- tion to bargain remained unimpaired., Respondent con- cedes that it, has refused to bargain but raises three af- firmative defenses-the last by amendment to its answer at the hearing. First, Respondent contends that the Union abandoned the representation of part-time truck- drivers and technicians, destroying the integrity of the unit and relieving Respondent of any further obligation to bargain. Second, Respondent contends that the Union's conduct with respect to the part-time truckdriv- ers and technicians shows a change in circumstances be- cause the parties entered into the Stipulation for Certifi- cation Upon Consent Election, thus permitting Respond- ent to withdraw from the,stipulation and relieving Re- spondent of any continuing duty to bargain. Finally, Re- spondent contends that the only appropriate forum to de- termine the issues raised by: the ,complaint is in the repre- sentation proceeding generated by its petition to amend the certification. It is well settled that the scope of an established col lective-bargaining unit is a nonmandatory subject of bar- gaining. and that neither party 'may lawfully insist to im- passe on changing the scope of the unit. However, it is equally settled that a party may lawfully propose a change in the scope of the bargaining unit and the parties may in certain circumstances agree to a change. Tarlac Meat Co., 239 NLRB 1396, 1397 (1979). ' It is clear from the undisputed facts that in this case the Union did no more than propose a change in the scope of the bargaining unit and, as the parties stipulated, did not insist to impasse on any subject of bargaining. The cited, case supports the General Counsel's position that Respondent's refusal to bargain after the 17 October meeting violated its bargaining obligation. Respondent's first two, affirmative defenses must fail on the facts of the case. Despite the claim that the Union abandoned the part-time truckdrivers and technicians, 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the facts show no more than proposals or assertions of a desire to remove them from the contract unit. In the case of the part-time drivers Respondent's contention is ex- ceptionally hollow, for at the time of the election and presentation of , the proposal there were no part-time truckdrivers. It is difficult in that context to view the Union's proposal to exclude the use of part-time drivers as anything more than a routine proposal "relating to hours of employment to protect the work opportunities of the full-time drivers who were then employed. Like- wise, failure to include part-time drivers in a meeting to discuss contract proposals is hardly surprising when none were employed between the time of the election and presentation of the proposal. But even after two part-time drivers were employed (for how long the record does not show) the proposals with respect to them and the technicians were never more than that. Significantly, before breaking off negoti- ations, Respondent never responded to` the proposals, never suggested that it did not want to bargain over them, and never stated that if the Union persisted in pressing them it would withdraw from bargaining. When the Union sought to make clear that it' was not insisting on these proposals and would bargain for the part-time drivers and the technicians, insofar as the record shows Respondent did not even reply. A. O. Smith Corp., 119 NLRB 621 (1957), Setzer's Super Markets of Georgia, 145 NLRB 1500 (1964), and Teamsters Local 671 (Airborne Freight), 199 NLRB 994 (1972), cited by Respondent bear no resemblance to this case. In each of these cases after certifications major changes were agreed to or acquiesced in by union and employer. Here changes have been proposed but none has occurred.5 To the extent that Respondent in relying on Airborne contends that it was justified in refusing to bargain because the Union has unfairly represented part- time drivers and technicians, its contention is without merit. B. Brown Associates, 224 NLRB 929, 937-938 (1976). Respondent argues that the Union's conduct in'effect changed the ground rules under which the election was conducted, that had the change occurred before the elec- tion Respondent would have been justified in withdraw- ing from the election agreement, and that the results of the election therefore should not bind Respondent, citing NLRB v. Unifemme, Inc., 570 F.2d 230 (8th Cir. 1978). Again the facts are clearly distinguishable. Thereafter, the employer agreed to an election, the conditions of the election were materially changed without the employer's consent; 'here a change in the agreed-upon unit has only been proposed. Respondent argues that the filing of the petition to amend the certification "preempts" this unfair labor prac- tice proceeding because until the ' Board has determined the scope of the unit in that proceeding, there is no final- ly determined unit on which a bargaining order can be based, because the determination of an appropriate unit b As the General Counsel points out, neither party may unilaterally attack the integrity of the certified unit . It may be changed only by mutual agreement or Board action. Arizona Electric Power, 250 NLRB 1132, 1133 (1980). in the first instance is for the Regional Director subject to appeal to the Board and not within the jurisdiction of an administrative law judge, and because the issue should be resolved in a nonadversarial representation proceed- ing with different powers of the respective triers of fact and methods of review. Once again Respondent's arguments rest on faulty premises. Appropriateness of bargaining units is routinely determined in unfair labor practice proceedings. There is no requirement in the statute or the Board's Rules that units first be determined in representation proceedings. Ultimately, it is the Board that decides the issue in either proceeding. Moreover, the parties stipulated to the ap- propriate' unit in the initial representation proceeding, and the issue has been reraised only by a last minute peti- tion filed long after Respondent's refusal to bargain and the issuance of the complaint.6 Respondent has proposed no alternative unit and pre- sented no evidence or argument to suggest that the certi- fied unit is inappropriate.? The issue in this case is not whether the certified unit is appropriate. The only issue is whether the Union insisted on bargaining for a differ- ent unit, justifying Respondent's refusal to bargain fur- ther. To defer this case pending disposition of the peti- tion would only add further unnecessary delay. I find that Respondent's defenses have no merit and that Respondent since 17 October has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent has refused to bar- gain with the Union, I shall recommend that it be or- dered to bargain on request with the Union and, if an un- derstanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period pro- vided by law, the certification year shall be extended by 7-1/2 months from the date Respondent resumes good- faith bargaining with the Union to embrace the period of the certification year during which Respondent refused to bargain.8 8 In Lorimar Production, 279 NLRB 300 (1986), cited by Respondent, the election was held before a final unit determination in the representa- tion case, and the disputed employees voted subject to challenge. The employer promptly objected to the election on the grounds that the em- ployees voted based on a false assumption as to the scope of the unit. Here there was and is no unresolved issue as to the appropriate unit. 7 ,Although Respondent's petition in Case 4-AC-67 states as its pur- pose amendment of certification, it fails to set forth "the details of the desired amendments and reasons therefore" as required by Sec. 102.61(e) of the Board's Rules and Regulations. Insofar as appears, Respondent seeks only reaffirmation of the stipulated unit, an unnecessary act in the face of the outstanding certification. 8 Cellar Restaurant, 262 NLRB 796 (1982). SYNCOR INTERNATIONAL CORP. Although the General Counsel requests inclusion of a visitatorial clause in the order authorizing the Board to engage in discovery to enable it to monitor enforcement of its Order on enforcement by a court of appeals, the nature of the remedy in this case does not appear to make inclusion of a visitatorial clause necessary. On the basis of the ' above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Syncor International Corporation is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Highway Truck Drivers and Helpers, Local 107, af- filiated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Included: All full-time and regular part-time driver employees and technicians employed by the Respondent at its 3 North 2nd Street, Philadelphia, Pennsylvania facility. Excluded: All other employees including pharma- cists, sales representatives, clerical employees, guards and supervisors as defined in the Act. 4. Since 4 June 1985, the Union has been the certified exclusive representative of the employees in the appro- priate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing after 17 October 1985 to bargain collec- tively with the Union as the exclusive bargaining repre- sentative of the employees of Respondent in the appro- priate unit, Respondent has engaged 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 Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, Syncor International Corporation, Philadelphia, Pennsylvania, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Highway Truck Drivers and Helpers, Local 107, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America as the exclusive bargaining rep- resentative of the employees in the bargaining unit set forth in paragraph 2(a), below. 9 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 411 (b) In 'any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached, embody the un- derstanding in a signed agreement: Included: All full-time and regular part-time driver employees and technicians employed by the Respondent at its 3 North 2nd Street, Philadelphia, Pennsylvania facility. Excluded: All other employees including pharma- cists, sales representatives, clerical employees, guards and supervisors as defined in the Act. (b) Post at its facilities in Philadelphia, Pennsylvania, copies of the attached notice marked "Appendix."10 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director' in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 10 If 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 Nation- al Labor Relations Board" shall 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Highway Truck Drivers and Helpers, Local 107, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive representative' of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: Included: All full-time and regular part-time driver employees and technicians employed by us .at our 3 North 2nd Street, Philadelphia, Pennsylvania facility. Excluded: All other employees including pharma- cists, sales -representatives, clerical employees, guards and supervisors as defined in the Act. SYNCOR INTERNATIONAL CORPORATION