Bio-Science Laboratories

National Labor Relations Board - Board Decisions

Sep 5, 1974

213 N.L.R.B. 171 (N.L.R.B. 1974)

B10-SCIENCE LABORATORIES 171
Bio-Science Laboratories and International Chemical
Workers Union, Local 805 . Case 31-CA-4283
September 5, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
not be granted. Respondent thereafter filed a re-
sponse to Notice To Show Cause, with an affidavit
attached.
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:
Upon a charge filed on February 25, 1974, by Inter-
national Chemical Workers Union, Local 805, herein
called the Union, and duly served on Bio-Science
Laboratories, herein called the Respondent, the Gen-
eral Counsel of the National Labor Relations Board,
by the Regional Director for Region 31, issued a com-
plaint and notice of hearing on February 27, 1974,
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 Nation-
al Labor Relations Act , as amended . Copies of the
charge, 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 rec-
ord shows that on January 31, 1974, following a Board
election in Case 31-RM-330, the Union was duly
certified as the exclusive collective-bargaining repre-
sentative of Respondent's employees in the unit found
appropriate;' and that, by letter dated February 6,
1974,2 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 12, 1974,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in the
complaint, submitting affirmative defenses, and re-
questing that the complaint be dismissed.
On April 10, 1974, counsel for the General Counsel
filed directly with the Board a Motion to Transfer
Case to and Continue Before the Board and for Sum-
mary Judgment. Subsequently, on April 25, 1974, the
Board issued an order transferring the proceeding to
the Board and a Notice To Show Cause why the Gen-
eral Counsel's Motion for Summary Judgment should
'Official notice is taken of the record in the representation proceeding,
Case 31-RM-330, 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);
Golden Age Beverage Co., 167 NLRB 151, enfd . 415 F.2d 26 (C.A. 5, 1969);
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.
2 Par. 9 of the complaint inadvertently sets forth February 27, 1973, as the
date the Respondent refused to bargain . The date is hereby corrected to
reflect the date set forth above as supported by the record.
Ruling on the Motion for Summary Judgment
In its response to the Notice To Show Cause, as in
an affirmative defense alleged in its answer to the
complaint, the Respondent attacks the validity of the
Board's certification of the Union because it is based
upon a revised tally of ballots which issued after the
Board, in its January 15, 1974, Decision and Direc-
tion,3 Case 31-RM-330, erroneously overruled and
directed the Regional Director to open and count a
determinative number of challenged ballots. The Re-
spondent admits that at every stage of the representa-
tion proceeding, it raised its contention concerning
the challenged voters. By this assertion, and more
specifically by its denials, in whole or in part, of the
allegations of the complaint, the affirmative defense
alleged in its answer, and the arguments propounded
in its response to the notice to show cause, the Re-
spondent is attempting to relitigate the issues it raised
in the underlying representation proceeding, Case 31-
RM-330.4
It is well settled that in the absence of relevant
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 to
relitigate issues which were or could have been litigat-
ed in a prior representation proceeding.5
All issues raised by the Respondent in this proceed-
ing except as to the alleged "newly discovered evi-
dence" which we have found to be without merit, were
or could have been litigated in the prior representa-
tion proceeding, and the Respondent has not offered
7 Although Member Kennedy in the Decision and Direction , Case 31-
RM-330, would not find two employees eligible to vote, he would concur in
the results reached herein , since these two voters are not determinative of the
results of the election.
4In its response to the notice to show cause , with an affidavit attached,
as in an affirmative defense in its answer , the Respondent alleges as newly
discovered evidence that several of the challenged voters were ineligible
because they had abandoned interest in their former jobs prior to the elec-
tion . We find no merit in this contention since at the time of the election, as
found at the hearing and at which time the Respondent put on proof, the
employees had had sufficient interest in reinstatement to be eligible to vote
therein , and the interest of these employees , several months after the election
and the hearing, is irrelevant to this determination . D. H. Farms Co., 192
NLRB 53 (1971). Cf. National Medical Hospital of Modesto, Inc., d/b/a
Doctor's Hospital of Modesto, 210 NLRB 894, fn . 3 (1974).
5 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146,162 ( 1941); Rules
and Regulations of the Board, Secs . 102.67 (f) and 102 .69 (c).
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to adduce at a hearing any relevant newly discovered
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 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
Respondent , a division of Bio-Science Enterprises,
a California corporation , is now , and has been at all
times material herein , a California corporation with
its principal place of business in Van Nuys , Califor-
nia, where it is engaged in the business of providing
clinical laboratory services to doctors and medical
facilities . Annually , in the course and conduct of its
business operations , Respondent provides services
valued in excess of $50 ,000 directly to customers lo-
cated outside the State of California . Annually, Re-
spondent purchases goods and materials valued in
excess of $50,000 directly from suppliers located out-
side the State of California.
We find , on the basis of the foregoing, that Respon-
dent 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 effectu-
ate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, Local 805,
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 consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All employees engaged in laboratory work or
its auxiliary functions who are employed in
Employer's laboratories located at 7600 Tyrone
Avenue , Van Nuys , California , 436 North Rox-
bury Drive , Beverly Hills, California, and 2080
Century Park East , Los Angeles , California; ex-
cluding confidential secretaries , executive atten-
dant, research associates , all professional
employees , accounting clerks , payroll clerks,
bookkeepers , guards and supervisors as defined
in the Act.
2. The certification
On February 22, 1973 , a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 31 designated the Union as their
representative for the purpose of collective bargaining
with the Respondent . The Union was certified as the
collective-bargaining representative of the employees
in said unit on January 31, 1974 , and the Union con-
tinues 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 1, 1974, and at
all times thereafter , the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about February 6, 1974, 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 collec-
tive bargaining of all employees in said unit.
Accordingly , we find that the Respondent has,
since February 6, 1974 , and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit , and that , by such refusal, Respondent
has engaged in and is engaging in unfair labor practic-
es 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 operations
described in section I, above , have a close , intimate,
and substantial relationship to trade, traffic , and com-
merce among the several States and tend to lead to
labor disputes burdening and obstructing commerce
and the free flow of commerce.
BIO-SCIENCE LABORATORIES 173
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 appro-
priate unit will be accorded the services of their select-
ed bargaining agent for the period provided by law,
we shall construe the initial period of certification as
beginning on the date Respondent commences to bar-
gain in good faith with the Union as the recognized
bargaining representative in the appropriate unit. See
Mar-Jac Poultry Company, Inc., 136 NLRB 785
(1962); Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229 ( 1962), enfd . 328 F .2d 600 (C.A. 5,
1964), cert . denied 379 U.S. 817 ( 1964); Burnett Con-
struction Company, 149 NLRB 1419 , 1421 (1964),
enfd . 350 F .2d 57 (C.A. 10, 1965).
The Board , upon the basis of the foregoing facts
and the entire record , makes the following:
CONCLUSIONS OF LAW
1. Bio-Science Laboratories is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Chemical Workers Union, Local
805, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All employees engaged in laboratory work or its
auxiliary functions who are employed in Employer's
laboratories located at 7600 Tyrone Avenue, Van
Nuys, California, 436 North Roxbury Drive, Beverly
Hills, California, and 2080 Century Park East, Los
Angeles, California; excluding confidential secre-
taries, executive attendant, research associates, all
professional employees, accounting clerks, payroll
clerks, bookkeepers, guards and supervisors as de-
fined 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 January 31, 1974, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about February 6, 1974, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Respon-
dent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing 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 Rela-
tions Board hereby orders that Respondent, Bio-Sci-
ence Laboratories, 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 condi-
tions of employment with International Chemical
Workers Union, Local 805, as the exclusive bargain-
ing representatives of its employees in the following
appropriate unit:
All employees engaged in laboratory work or
its auxiliary functions who are employed in
Employer's laboratories located at 7600 Tyrone
Avenue, Van Nuys, California, 436 North Rox-
bury Drive, Beverly Hills, California, and 2080
Century Park East, Los Angeles, California; ex-
cluding confidential secretaries, executive atten-
dant, research associates, all professional
employees, accounting clerks, payroll clerks,
bookkeepers, 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
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed agreement.
(b) Post at its Van Nuys, Beverly Hills, and Los
Angeles, California, locations copies of the attached
notice marked "Appendix." 6 Copies of said notice, on
forms provided by the Regional Director for Region
31, after being duly signed by Respondent's represen-
tative, 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 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 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 read " Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
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 de-
scribed below, with respect to rates of pay, wages,
hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
The bargaining unit is:
All employees engaged in laboratory work
or its auxiliary functions who are employed in
Employer's laboratories located at 7600 Ty-
rone Avenue, Van Nuys, California, 436 North
Roxbury Drive, Beverly Hills, California, and
2080 Century Park East, Los Angeles, Califor-
nia; excluding confidential secretaries, execu-
tive attendant, research associates, all
professional employees, accounting clerks,
payroll clerks, bookkeepers, guards and super-
visors as defined in the Act.
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 con-
cerning rates of pay, wages, hours, and other
terms and conditions of employment with Inter-
national Chemical Workers Union, Local 805, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by
BIO-SCIENCE LABORATORIES
(Employer)
Dated By
(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, Federal Building, Room 12100, 11000
Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7351.