Center for Laboratory Medicine, Inc.

National Labor Relations Board - Board Decisions

Mar 26, 1980

248 N.L.R.B. 728 (N.L.R.B. 1980)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Center For Laboratory Medicine, Inc. and United
Food and Commerical Workers International
Union, Local 1357, AFL-CIO.' Case 4-CA-
10553
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on October 15, 1979, by
United Food and Commercial Workers Internation-
al Union, Local 1357, AFL-CIO, herein called the
Union, and duly served on Center for Laboratory
Medicine, Inc., herein called Respondent, the Gen-
eral Counsel of the National Labor Relations
Board, by the Regional Director for Region 4,
issued a complaint and notice of hearing on Octo-
ber 25, 1979, against Respondent, alleging that Re-
spondent 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 pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on December 6,
1978, following Board elections in Case 4-RC-
13195 the Union was duly certified as the exclusive
collective-bargaining representative of' Respon-
dent's employees in the unit found appropriate; 2
and that, commencing on or about September 20,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On November
2, 1979, Respondent filed its answer to the com-
plaint, and on November 15, 1979, Respondent
filed its amended answer to the complaint, admit-
ting in part, and denying in part, the allegations in
the complaint.
On January 4, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on January 17,
1980, the Board issued an order transferring the
The name of the Union herein has been changed to reflect the new
name resulting from the June 7, 1979, merger of the Retail Clerks Inter-
national Union and Amalgamated Meatcutters and Butcher Workmen of
North America.
2 Official notice is taken of the record in the representation proceed-
ing. Case 4-RC-13195, as the term "record" is defined in Sees. 102.68
and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems, Inc., 166 NL.RB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. . Penello, 269 F.Supp. 573
(D.C.Va. 1957); FoIlett Corp., 164 NLRB 378 (1967), enlfd 397 F 2d 91
(7th Cir. 1968); Sec. 9(d) of the NI.RA, as amended.
248 NLRB No. 102
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment 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 response to the Notice To Show Cause and
amended answer to the complaint, Respondent
admits that it has refused to bargain with the
Union, but asserts that the bargaining unit certified
by the Board in Case 4-RC-13195 is inappropriate.
It requests, inter alia, that the Board reexamine the
Regional Director's failure to include in the appro-
priate unit all employees, both technical and non-
technical alike, at the Employer's main facility in
Trevose, Pennsylvania, as well as those areas
served by the Trevose facility on a daily basis. Re-
spondent also requests the Board to review the Re-
gional Director's sustaining of challenged ballots at
the Tri-County Medical Center facility and argues
that the Board's allowing voters at the Tri-County
Medical Center to vote by means of the challenge
procedure was inconsistent with the Act and de-
prived the Employer of the right to adequately
communicate its point of view to the employees.
Counsel for the General Counsel argues that Re-
spondent is not presenting newly discovered or
previously unavailable evidence which was not
previously considered by the Board, and is merely
attempting to relitigate issues which were or could
have been raised in the prior representation pro-
ceeding. We agree with the General Counsel.
Our review of the record herein, including the
record in Case 4-RC-13195 indicates that the Re-
gional Director's Decision, Order, and Direction of
Elections was issued on September 22, 1978. Re-
spondent requested review of the decision and di-
rection contending that the Regional Director
erred in limiting the scope of the unit to techni-
cians and technologists3 at the Trevose facility. Re-
spondent argued that the unit should have included
a number of other employee classifications at the
Trevose facility, as well as the Tri-County Medical
Center and several other employer locations. The
Board denied the request for review on October
3 The Regional Director determined that the technologists were pro-
fessional employees within the meaning of Sec. 2(12) of the Act and or-
dered a self-determination election for the technologists. He directed sep-
arate elections voting group A included all technicians while voting
group B included all technologists.
CENTER FOR LABORATORY MEDICINE 729
18, 1978, but amended the Regional Director's de-
cision to permit technicians and technologists at the
Tri-County Medical Center to vote under chal-
lenge. The election was held on October 19 and 26,
1978. The tally of ballots in voting group A
showed 38 votes cast for the Union and 18 against,
with 6 challenged ballots. In voting group B, on
the unit question there were 18 votes cast for inclu-
sion of the technologists with the nonprofessional
technicians, and 10 against, with 10 challenged bal-
lots. Also in voting group B, there were 11 votes 4
cast for the Union, 18 against, with 10 challenged
ballots. The challenged ballots were determinative
both as to the unit question and the representation
question in voting group B. No objections were
filed. On December 6, 1978, the Regional Director
issued a Supplemental Decision on Challenged Bal-
lots sustaining the challenges of the employees at
the Tri-County Medical Center and certifying the
Union as the bargaining representative for the com-
bined unit of voting groups A and B. On Decem-
ber 18, 1978, Respondent requested review of the
supplemental decision and renewed the arguments
it had made in its prior request for review. The
Board granted the request for review on January
29, 1979, and thereafter affirmed the Regional Di-
rector's supplemental decision by telegram on
August 10, 1979.
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.5
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, 6 and Respondent does
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:
4 One challenged ballot was cast by a voter employed at the Trevose
facility The other 10 challenged ballots were cast by technicians and
technologists at the Tri-Countv Medical Center
5 See Pttsburgh Plate lasx Co vs I..R.B., 313 U.S. 146 162 (1941);
Rules and Regulations of the Board. Secs 102 67(f) and 102.6 9(c)
a Contrary to Respondent's contention, this case is not analogous to
National Health Laboratories, In,.. 239 NLRB No 32 (1978). In that case.
the issues did not involve a multilocalion unit, nor did the Petitioner seek
the separate representation of the technicians and technologists, as wsas
the case here
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Pennsylvania corporation, is en-
gaged in providing diagnostic testing services at
various facilities in the Commonwealth of Pennsyl-
vania, including its Trevose, Pennsylvania, facility.
During the past year, a representative period, Re-
spondent performed services valued in excess of
$50,000, the results of which were shipped directly
to points located outside the Commonwealth of
Pennsylvania.
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
United Food and Commercial Workers Interna-
tional Union, Local 1357, AFL-CIO, is a labor or-
ganization 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 technicians and technologists employed by
the Employer at its 3190 Tremont Avenue,
Trevose, Pennsylvania, facility; but excluding
all other professional and nonprofessional em-
ployees, guards and supervisors as defined in
the Act.
2. The certification
On October 19 and 26, 1978, a majority of the
employees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 4, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining represen-
tative of the employees in said unit on December 6,
1978, and the Union continues to be such exclusive
representative within the meaning of Section 9(a)
of the Act.
730 DECISIONS OF NATIONAL LABOR RELATINS BOARD
B. The Request To Bargain and Responalent's
Refusal
Commencing on or about September 17, 1979,
and at all times thereafter, the Union has requested
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about September 20, 1979, and con-
tinuing at all times thereafter to date, Respondent
has refused, and continues to refuse, to recognize
and bargain with the Union as the exclusive repre-
sentative for collective bargaining of all employees
in said unit.
Accordingly, we find that Respondent has, since
September 20, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respon-
dent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABIOR
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
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); Commerce 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. Center for Laboratory Medicine, Inc., is an
employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. United Food and Commercial Workers Inter-
national Union, Local 1357, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All technicians and technologists employed at
the Employer's 3190 Tremont Avenue, Trevose,
Pennsylvania, facility; but excluding all other pro-
fessional and non-professional employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since December 6, 1978, 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 September 20, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Respon-
dent 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, Respon-
dent 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)(l) 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,
Center for Laboratory Medicine, Inc., Trevose,
Pennsylvania, 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 United Food and
Commercial Workers International Union, Local
CENTER FOR LABORATORY MEDICINE 731
1357, AFL-CIO, as the exclusive bargaining repre-
sentative of its employees in the following appro-
priate unit:
All technicians and technologists employed by
the Employer at its 3190 Tremont Avenue,
Trevose, Pennsylvania, facility, but excluding
all other professional and nonprofessional em-
ployees, guards and supervisors as defined in
the Act.
(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 the Trevose, Pennsylvania, facility
copies of the attached notice marked "Appendix."7
Copies of said notice, on forms provided by the
Regional Director for Region 4, after being duly
signed by Respondent's representative, 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 Respon-
7 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with United Food and Commercial Workers
International Union, Local 1357, AFL-CIO, as
the exclusive representative of the employees
in the bargaining 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 represen-
tative of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions
of employment, and, if an understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All technicians and technologists employed
at the Employer's 3190 Tremont Avenue,
Trevose, Pennsylvania, facility, but exclud-
ing all other professional and non-profes-
sional employees, guards and supervisors as
defined in the Act.
CENTER FOR LABORATORY MEDI-
CINE, INC.