Lifesource

National Labor Relations Board - Board Decisions

Jun 5, 2015

362 NLRB No. 107 (N.L.R.B. 2015)

362 NLRB No. 107
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 Commer-
cial Workers. Case 13–CA–091617
June 5, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
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. Pursuant to a charge filed by Local 881,
United Food and Commercial Workers (the Union) on
October 18, 2012, the Acting General Counsel issued the
complaint on November 1, 2012, alleging that Lifesource
(the Respondent) 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.
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). Thereaf-
ter, 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 remanded this case for further proceedings
consistent with the Supreme Court’s decision.
On December 16, 2014, the Board issued a further De-
cision, Certification of Representative, and Notice to
Show Cause in Cases 13–CA–091617 and 13–RC–
074795, which is reported at 361 NLRB No. 136.
Thereafter, the General Counsel filed a first amended
complaint in Case 13–CA–091617, the Respondent filed
an answer to the amended complaint, the General Coun-
sel filed a response to the notice to show cause, and the
Respondent filed a response to the notice to show cause
and a statement in opposition to the Motion for Summary
Judgment.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
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).
As noted above, the Respondent also argues for the
first time that the Regional Director was invalidly ap-
pointed and without authority to act in this matter. In its
statement in opposition to the Motion for Summary
Judgment, the Respondent makes clear that its challenge
to the authority of the Regional Director is based on its
argument that Member Becker was not validly appointed
and, therefore, the Board lacked a quorum on December
13, 2011, when the Regional Director was appointed.
We reject this argument. First, since the Respondent did
not raise this issue previously, we find that the Respond-
ent is estopped from challenging the authority of the Re-
gional Director at this time. See Professional Transpor-

1 The amended complaint substitutes “December 16, 2014” for “Sep-
tember 19, 2012” as the date the Board certified the Union as the exclu-
sive collective-bargaining representative of the unit employees, alleges
that the Union’s request that the Respondent recognize and bargain
collectively with it has continued to date, and alleges that the Respond-
ent continues to fail and refuse to recognize and bargain with the Un-
ion. The amended answer admits the factual allegations of the com-
plaint, reiterates the arguments made in the underlying representation
proceeding that the Union was not properly certified, and argues for the
first time that the Regional Director was without legal authority to act
in this matter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
tation, 362 NLRB No. 60, slip op. at 2 fn. 7 (2015).
Moreover, the Respondent is simply wrong that the
Board lacked a quorum at the time the Regional Director
was appointed. Member Becker’s appointment is not
subject to challenge under the Supreme Court’s decision
in Noel Canning, supra, and the Board unquestionably
had a quorum when the Regional Director was appoint-
ed. See NLRB v. Gestamp South Carolina, LLC, 769
F.3d 254, 257 (4th Cir. 2014) (“we now hold that Mem-
ber Becker was validly appointed to the Board.”).
Accordingly, we grant the Motion for Summary Judg-
ment.2
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 December 16, 2014,
as the exclusive collective-bargaining representative 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.

2 The Respondent’s request that the complaint be dismissed is there-
fore denied.
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.
Since about October 3, 2012, and continuing to date,
the Union, by Jeff Jayko, has requested that the Re-
spondent meet to bargain collectively with it as the ex-
clusive collective-bargaining representative of the unit.
Since about October 15, 2012, and continuing to date, the
Respondent has refused to recognize and bargain with
the Union. We find that this refusal constitutes an un-
lawful 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 to recognize and bargain with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing commerce within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and (7) of the Act.3
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

3 In Howard Plating Industries, 230 NLRB 178, 179 (1977), the
Board stated:
Although an employer's obligation to bargain is established as of the
date of an election in which a majority of unit employees vote for un-
ion representation, the Board has never held that a simple refusal to in-
itiate collective-bargaining negotiations pending final Board resolution
of timely filed objections to the election is a per se violation of Section
8(a)(5) and (1). There must be additional evidence, drawn from the
employer's whole course of conduct, which proves that the refusal was
made as part of a bad-faith effort by the employer to avoid its bargain-
ing obligation.
No party has raised this issue, and we find it unnecessary to decide
in this case whether the unfair labor practice began on the date of the
Respondent’s initial refusal to bargain at the request of the Union, or at
some point later in time. It is undisputed that the Respondent has con-
tinued to refuse to bargain since the Union’s certification and we find
that continuing refusal to be unlawful. Regardless of the exact date on
which Respondent’s admitted refusal to bargain became unlawful, the
remedy is the same.
LIFESOURCE 3
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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions 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.”4 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,

4 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.”
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 Re-
spondent 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.
Dated, Washington, D.C. June 5, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, 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 Federal labor law and has ordered us to post and obey
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
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.
The Board's decision can be found at
www.nlrb.gov/case/13–CA–091617 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.
LIFESOURCE