North Suburban Blood Center

NORTH SUBURBAN BLOOD CENTER 733 North Suburban Blood Center and Warehouse, Mail Order, Office, Technical and Professional Em- ployees Union, Local 743, affiliated with the In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 13-CA-19881 August 27, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELl O, AND TRUESDALE Upon a charge filed on May 2, 1980, by Ware- house, Mail Order, Office, Technical and Profes- sional Employees Union, Local 743, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, and duly served on North Suburban Blood Center, herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 13, issued a complaint on June 2, 1980, against Re- spondent, 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on February 29, 1980, following a Board election in Case 13-RC- 15245, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about the first part of March 1980, and at all times thereafter, Re- spondent has refused, and continues to date to refuse, to bargain ccllectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 11, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 27, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on July 3, 1980, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why 'Official notice is taken of the record in the representation proceed- ing, Case 13-RC-15245, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended See LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F2d 683 (4th Cir. 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Intertype Co. v Penello, 269 F.Supp 573 (D.CVa 1967); Folletl Corp., 164 NLRB 378 1967). enfd 397 F2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 251 NLRB No. 98 the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- 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 In its answer to the complaint, Respondent admits the request and refusal to bargain, but al- leges certain affirmative defenses, the substance of which attack the validity of the Board's certifica- tion in the underlying representation proceeding. In its affirmative defenses, Respondent alleges, inter alia, that it is a health care institution as defined in Section 2(14) of the Act, that the unit was an inap- propriate one, and that the Regional Director im- properly overruled Respondent's challenges to bal- lots cast in the election. Review of the record herein, including the record in Case 13-RC-15245, reveals that on Octo- ber 25, 1979, after a hearing in which Respondent participated, the Regional Director issued a Deci- sion and Direction of Election in which he found that Respondent was not a health care institution as defined in Section 2(14) of the Act and that the unit sought by Petitioner was appropriate. On No- vember 20, 1979, the Board denied Respondent's request for review. On November 20, 1979, an election was held in which Respondent challenged two ballots. On December 18, 1979, the Regional Director overruled Respondent's challenges and on February 12, 1980, the Board denied Respondent's request for review. On February 21, 1980, the chal- lenged ballots were opened and the amended tally reflected that a majority of the valid ballots cast were for the Union. On February 29, 1980, the Union was certified. It therefore appears that in this proceeding Respondent is attempting to reliti- gate issues fully litigated and finally determined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging 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. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does 2See Ptsburgh Plate Glass Co \ . l. R. 313i U S 14 62 191) Rules and Regulations (of the Board, Secs 102 67(1) and 102 6 9 (c). 734 DECISIONS OF NATIONAL LABOR RELATIONS O()ARD not offer to adduce at a hearing any newly discov- ered 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 Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONI)ENT Respondent is a not-for-profit Illinois corporation with its office and place of business in Glenview, Illinois, herein called Respondent's facility. Re- spondent is engaged in the operation of a blood bank. Respondent's annual gross revenue of more than $500,000 exceeds dollar volume standards set by the Board for assertion of jurisdiction. Its pur- chase of goods, valued in excess of $50,000, which originate outside the State of Illinois, satisfies impact of commerce requirements. We find, on the basis of the foregoing, that Re- spondent 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 effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, 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 Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time distribution drivers and dispatchers employed by the Re- spondent at its facility now located at 1255 North Milwaukee Avenue in Glenview, Illi- nois, but excluding all guards and supervisors as defined in the Act and all other employees. 2. The certification On November 20, 1979, a majority of the em- ployees of Respondent in said unit, in a secret- ballot election conducted under the supervision of the Regional Director for Region 13, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on February 29, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about the first part of March 1980, and at all times thereafter, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about the first part of March 1980, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclu- sive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since the first part of March 1980, and at all times there- after, refused to bargain collectively with the Union as the exclusive representative of the em- ployees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 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 oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. 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, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is ---- N()RI SLIHIIRHAN [L.()()) CINIER 735 reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Comnerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS Of: LAW 1. North Suburban Blood Center is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. Warehouse, Mail Order, Office, Technical and Professional Employees Union, Local 743, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular and part-time distri- bution drivers and dispatchers employed by the Respondent at its facility now located at 1255 North Milwaukee Avenue in Glenview, Illinois, but excluding all guards and supervisors as defined in the Act, and all other employees, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since February 29, 1980, 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 the first part of March 1980, and at all times thereafter, to bargain collectively with the above-named labor organiza- tion 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 Sec- tion 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged 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 meaning 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 Re- lations Board hereby orders that the Respondent, North Suburban Blood Center, Glenview, Illinois 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 Warehouse, Mail Order, Office, Technical and Professional Employ- ees Union, Local 743, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs. War- ehousemen and Helpers of America, as the exclu- sive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time distribution drivers and dispatchers employed by the Re- spondent at its facility now located at 1255 North Milwaukee Avenue in Glenview. Illi- nois, but excluding all guards and supervisors as defined in the Act and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Post at its facility at 1255 North Milwaukee Avenue, copies of the attached notice marked "Ap- pendix."3 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- ' In he eent hat this Order is enforced hb a Judgment of a United States Courl of Appeals, the ords in the notice reading Posted h Order of the Nalional Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appenal, Enforcing all Order f he Nali onal Relatio, HBoard" 73h I)t CISI()NS OF NATIONAL LABOR REI.ATIONS BOARD cluding 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 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. APPENDIX NOICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WIL. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Warehouse, Mail Order, Office, Techni- cal and Professional Employees Union, Local 743, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees 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 repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time distribu- tion drivers and dispatchers employed by us at our facility now located at 1255 North Milwaukee Avenue in Glenview, Illinois, but excluding all guards and supervisors as defined in the Act and all other employees. NORTH SUBURBAN BLOOD CENTER