Lifesource

950 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lifesource and Local 881, United Food and Commer- cial Workers. Case 13–CA–091617 June 5, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN 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. Pursuant to a charge filed by Local 881, United Food and Commercial Workers (the Union) on October 18, 2012, the Acting General Counsel issued the complaint on November 1, 2012, alleging that Lifesource (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain following the Union’s certification in Case 13– RC–074795. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On November 26, 2012, the Acting General Counsel filed a Motion for Summary Judgment. On November 27, 2012, the Acting General Counsel filed a correction to that motion. On November 28, 2012, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. 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 volume). 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 remanded this case for further proceedings consistent with the Supreme Court’s decision. On December 16, 2014, the Board issued a further De- cision, Certification of Representative, and Notice to Show Cause in Cases 13–CA–091617 and 13–RC– 074795, which is reported at 361 NLRB 1201. Thereaf- ter, the General Counsel filed a first amended complaint in Case 13–CA–091617, the Respondent filed an answer to the amended complaint, the General Counsel filed a response to the notice to show cause, and the Respond- ent filed a response to the notice to show cause and a statement in opposition to the Motion for Summary Judgment.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification on the basis of its objections to conduct alleged to have affected the results of the election in the representation proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). As noted above, the Respondent also argues for the first time that the Regional Director was invalidly ap- pointed and without authority to act in this matter. In its statement in opposition to the Motion for Summary Judgment, the Respondent makes clear that its challenge to the authority of the Regional Director is based on its argument that Member Becker was not validly appointed and, therefore, the Board lacked a quorum on December 13, 2011, when the Regional Director was appointed. We reject this argument. First, since the Respondent did not raise this issue previously, we find that the Respond- ent is estopped from challenging the authority of the Re- gional Director at this time. See Professional Transpor- tation, 362 NLRB 534, 535 fn. 7 (2015). Moreover, the Respondent is simply wrong that the Board lacked a quorum at the time the Regional Director was appointed. Member Becker’s appointment is not subject to chal- lenge under the Supreme Court’s decision in Noel Can- 1 The amended complaint substitutes “December 16, 2014” for “Sep- tember 19, 2012” as the date the Board certified the Union as the exclu- sive collective-bargaining representative of the unit employees, alleges that the Union’s request that the Respondent recognize and bargain collectively with it has continued to date, and alleges that the Respond- ent continues to fail and refuse to recognize and bargain with the Un- ion. The amended answer admits the factual allegations of the com- plaint, reiterates the arguments made in the underlying representation proceeding that the Union was not properly certified, and argues for the first time that the Regional Director was without legal authority to act in this matter. 362 NLRB No. 107 LIFESOURCE 951 ning, supra, and the Board unquestionably had a quorum when the Regional Director was appointed. See NLRB v. Gestamp South Carolina, LLC, 769 F.3d 254, 257 (4th Cir. 2014) (“we now hold that Member Becker was val- idly appointed to the Board”). Accordingly, we grant the Motion for Summary Judg- ment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a not-for-profit corporation with an office and place of business in Rosemont, Illinois, has been engaged in the business of providing services related to whole and processed blood products. During the past calendar year, a representative period, the Respondent, in conducting its business operations described above, purchased and received at its Rose- mont, Illinois facility goods, products, materials, and services valued in excess of $50,000 directly from points outside the State of Illinois. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union, Local 881, United Food and Commercial Workers, is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on March 30, 2012, the Union was certified on December 16, 2014, as the exclusive collective-bargaining representative of the employees in the following 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. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Sec- tion 9(a) of the Act. B. Refusal to Bargain At all material times, Diane Merkt has held the posi- tion of vice president of administration and chief compli- 2 The Respondent’s request that the complaint be dismissed is there- fore denied. ance officer and has been a supervisor of the Respondent within the meaning of Section 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. Since about October 3, 2012, and continuing to date, the Union, by Jeff Jayko, has requested that the Re- spondent meet to bargain collectively with it as the ex- clusive collective-bargaining representative of the unit. Since about October 15, 2012, and continuing to date, the Respondent has refused to recognize and bargain with the Union. We find that this refusal constitutes an un- lawful refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit, the Respondent has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act.3 REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 3 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the Board stated: Although an employer’s obligation to bargain is established as of the date of an election in which a majority of unit employees vote for un- ion representation, the Board has never held that a simple refusal to in- itiate collective-bargaining negotiations pending final Board resolution of timely filed objections to the election is a per se violation of Section 8(a)(5) and (1). There must be additional evidence, drawn from the employer’s whole course of conduct, which proves that the refusal was made as part of a bad-faith effort by the employer to avoid its bargaining obligation. No party has raised this issue, and we find it unnecessary to decide in this case whether the unfair labor practice began on the date of the Respondent’s initial refusal to bargain at the request of the Union, or at some point later in time. It is undisputed that the Respondent has con- tinued to refuse to bargain since the Union’s certification and we find that continuing refusal to be unlawful. Regardless of the exact date on which Respondent’s admitted refusal to bargain became unlawful, the remedy is the same. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 952 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Lifesource, Rosemont, Illinois, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 881, United Food and Commercial Workers as the exclusive collective-bargaining representative of the em- ployees in the bargaining unit. (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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: 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. (b) Within 14 days after service by the Region, post at its facility in Rosemont, Illinois, copies of the attached notice marked “Appendix.”4 Copies of the notice, on forms provided by the Regional Director for Region 13, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent custom- arily communicates with its employees by such means. Reasonable steps shall be taken by the Respondent to 4 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Re- spondent at any time since October 15, 2012. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Local 881, United Food and Commercial Workers as the exclusive collective-bargaining 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 exercise of the rights listed above. 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 fol- lowing bargaining unit: All full-time and regular part-time Account Managers and Team Account Managers in the Recruitment de- partment employed by us at our facility located at 5505 Pearl Street, Rosemont, Illinois; but excluding all other employees, office clerical employees and guards, pro- fessional employees and supervisors as defined in the Act. LIFESOURCE LIFESOURCE 953 The Board’s decision can be found at www.nlrb.gov/case/13–CA–091617 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.