Lifesource

National Labor Relations Board - Board Decisions

Dec 16, 2014

361 N.L.R.B. 1201 (N.L.R.B. 2014)

LIFESOURCE 1201
Lifesource and Local 881, United Food and Commer-
cial Workers. Cases 13–CA–091617 and 13–RC–
074795
December 16, 2014
DECISION, CERTIFICATION OF
REPRESENTATIVE, AND NOTICE TO
SHOW CAUSE
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND SCHIFFER
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 volumes). 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 vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.
The National Labor Relations Board has consolidated
the underlying representation proceeding with this unfair
labor practice proceeding and delegated its authority in
both proceedings to a three-member panel.
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. The Board’s December 21, 2012 decision
states that the Respondent is precluded from litigating
any representation issues because, in relevant part, they
were or could have been litigated in the prior representa-
tion proceeding. The prior proceeding, however, also
occurred at a time when the composition of the Board
included two persons whose appointments to the Board
had been challenged as constitutionally infirm, and we
do not give it preclusive effect. Accordingly, we consid-
er below the representation issues that the Respondent
has raised in this proceeding.
In its response to the Notice to Show Cause, the Re-
spondent reiterates its objections to the election alleging
that the Board agent conducting the election “failed to
maintain the integrity of the voting area” by (1) permit-
ting the election observers to leave the voting area with-
out securing the ballot box; (2) leaving the voting place
without securing the ballots; and (3) permitting voters to
view the Excelsior list.1
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
Respondent’s objections to the election held on March
30, 2012, and the Regional Director’s report recommend-
ing disposition of them. The election was conducted
pursuant to a Stipulated Election Agreement. The re-
vised tally of ballots shows 11 for and 9 against the Peti-
tioner; there was 1 void ballot. The Board has reviewed
the record in light of the exceptions and brief. We agree
with the findings of the Regional Director that the Re-
spondent has failed to present evidence that would sup-
port overturning the election; we adopt his conclusions
and recommendations and find that a certification of rep-
resentative should be issued.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local 881, United Food and Commercial
Workers, and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing 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.
NOTICE TO SHOW CAUSE
As noted above, the Respondent has refused to bargain
for the purpose of testing the validity of the certification
of representative in the U.S. Courts of Appeals. Alt-
hough Respondent’s legal position may remain un-
changed, it is possible that the Respondent has or intends
to commence bargaining at this time. It is also possible
that other events may have occurred during the pendency
of this litigation that the parties may wish to bring to our
attention.
Having duly considered the matter,
1. The General Counsel is granted leave to amend the
complaint on or before December 26, 2014, to conform
with the current state of the evidence.
2. The Respondent’s answer to the amended complaint
is due on or before January 9, 2015.
3. NOTICE IS HEREBY GIVEN that cause be shown, in
writing, on or before January 30, 2015 (with affidavit of
service on the parties to this proceeding), as to why the
1 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
361 NLRB No. 136

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1202
Board should not grant the General Counsel’s Motion for
Summary Judgment. Any briefs or statements in support
of the motion shall be filed by the same date.