Lifesource

LIFESOURCE 1201 Lifesource and Local 881, United Food and Commer- cial Workers. Cases 13–CA–091617 and 13–RC– 074795 December 16, 2014 DECISION, CERTIFICATION OF REPRESENTATIVE, AND NOTICE TO SHOW CAUSE BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND SCHIFFER On December 21, 2012, the National Labor Relations Board issued a Decision and Order in this proceeding, which is reported at 359 NLRB No. 45 (2012) (not re- ported in Board volumes). Thereafter, the Respondent filed a petition for review in the United States Court of Appeals for the Seventh Circuit, and the General Counsel filed a cross-application for enforcement. At the time of the Decision and Order, the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally in- firm. On June 26, 2014, the United States Supreme Court issued its decision in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), holding that the challenged appoint- ments to the Board were not valid. Thereafter, the court of appeals vacated the Board’s Decision and Order and remanded this case for further proceedings consistent with the Supreme Court’s decision. The National Labor Relations Board has consolidated the underlying representation proceeding with this unfair labor practice proceeding and delegated its authority in both proceedings to a three-member panel. This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. The Board’s December 21, 2012 decision states that the Respondent is precluded from litigating any representation issues because, in relevant part, they were or could have been litigated in the prior representa- tion proceeding. The prior proceeding, however, also occurred at a time when the composition of the Board included two persons whose appointments to the Board had been challenged as constitutionally infirm, and we do not give it preclusive effect. Accordingly, we consid- er below the representation issues that the Respondent has raised in this proceeding. In its response to the Notice to Show Cause, the Re- spondent reiterates its objections to the election alleging that the Board agent conducting the election “failed to maintain the integrity of the voting area” by (1) permit- ting the election observers to leave the voting area with- out securing the ballot box; (2) leaving the voting place without securing the ballots; and (3) permitting voters to view the Excelsior list.1 In view of the decision of the Supreme Court in NLRB v. Noel Canning, supra, we have considered de novo the Respondent’s objections to the election held on March 30, 2012, and the Regional Director’s report recommend- ing disposition of them. The election was conducted pursuant to a Stipulated Election Agreement. The re- vised tally of ballots shows 11 for and 9 against the Peti- tioner; there was 1 void ballot. The Board has reviewed the record in light of the exceptions and brief. We agree with the findings of the Regional Director that the Re- spondent has failed to present evidence that would sup- port overturning the election; we adopt his conclusions and recommendations and find that a certification of rep- resentative should be issued. CERTIFICATION OF REPRESENTATIVE IT IS CERTIFIED that a majority of the valid ballots have been cast for Local 881, United Food and Commercial Workers, and that it is the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time Account Managers and Team Account Managers in the Recruitment de- partment employed by the Employer at its facility lo- cated at 5505 Pearl Street, Rosemont, Illinois; but ex- cluding all other employees, office clerical employees and guards, professional employees and supervisors as defined in the Act. NOTICE TO SHOW CAUSE As noted above, the Respondent has refused to bargain for the purpose of testing the validity of the certification of representative in the U.S. Courts of Appeals. Alt- hough Respondent’s legal position may remain un- changed, it is possible that the Respondent has or intends to commence bargaining at this time. It is also possible that other events may have occurred during the pendency of this litigation that the parties may wish to bring to our attention. Having duly considered the matter, 1. The General Counsel is granted leave to amend the complaint on or before December 26, 2014, to conform with the current state of the evidence. 2. The Respondent’s answer to the amended complaint is due on or before January 9, 2015. 3. NOTICE IS HEREBY GIVEN that cause be shown, in writing, on or before January 30, 2015 (with affidavit of service on the parties to this proceeding), as to why the 1 Excelsior Underwear, Inc., 156 NLRB 1236 (1966). 361 NLRB No. 136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202 Board should not grant the General Counsel’s Motion for Summary Judgment. Any briefs or statements in support of the motion shall be filed by the same date.