Lifesource

National Labor Relations Board - Board Decisions

Dec 21, 2012

359 NLRB No. 45 (N.L.R.B. 2012)

359 NLRB No. 45
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Lifesource and Local 881, United Food and Com-
mercial Workers. Case 13–CA–091617
December 21, 2012
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS GRIFFIN
AND BLOCK
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed by the Union on October
18, 2012, the Acting General Counsel issued the com-
plaint on November 1, 2012, alleging that the Respon-
dent 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.
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).
Accordingly, we grant the Motion for Summary Judg-
ment.1
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 September 19,
2012, as the exclusive collective-bargaining representa-
tive 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-
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.
On October 3, 2012, the Union, by letter, requested
that the Respondent meet to bargain collectively with it

1 The Respondent’s request that the complaint be dismissed is there-
fore denied.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
as the exclusive collective-bargaining representative of
the unit. Since about October 15, 2012, the Respondent
has failed and refused to recognize and bargain with the
Union. We find that this failure and refusal constitutes
an unlawful failure and 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 since about October 15, 2012,
to recognize and bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the appropriate unit, the Respondent has engaged in un-
fair labor practices affecting commerce within the mean-
ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
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
(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 exclusive
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions 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.”2 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
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 Respon-
dent 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.

2 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.”
3
LIFESOURCE
Dated, Washington, D.C. December 21, 2012
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Richard F. Griffin, Jr., Member
______________________________________
Sharon Block, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

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 the National Labor Relations Act and has ordered us to
post and abide by 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