Michigan Hospital Service

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 720 (N.L.R.B. 1972)

720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan Hospital Service and International Union,
United Automobile , Aerospace and Agricultural Im-
plement Workers of America (UAW). Case 7-CA-
9066
March 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
Upon a charge filed on October 28, 1971, by the
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), herein called the Union, and duly served on
Michigan Hospital Service, herein called the Respond-
ent, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region 7,
issued a complaint on November 2, 1971, against Re-
spondent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the National Labor Rela-
tions Act, as amended. Copies of the charge, complaint,
and notice of hearing before a Trial Examiner were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on October 4, 1971,
following a Board election in Case 7-RC-10720, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about October 26, 1971, and at all times there-
after, Respondent has refused, and continues to date to
refuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
November 12, 1971, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On November 16, 1971, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 19,
1971, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judgment
should not be granted. Respondent has not filed a re-
sponse to Notice To Show Cause which was due
December 3, 1971.
' Official notice is taken of the record in the representation proceeding,
Case 7-RC-10720 , 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; 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.
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 answer to the complaint the Respondent (1)
denies the appropriateness of the unit, (2) denies the
validity of the Union's certification, and (3) denies the
Union's status as exclusive majority bargaining repre-
sentative. Counsel for the General Counsel contends
that the Respondent basically challenges only the ap-
propriateness of the unit which was adjudicated in Case
7-RC-10720 and may not be relitigated here. We
agree.
Following a representation hearing in Case 7-RC-
10720, the Regional Director, in his Decision and Di-
rection of Election of August 27, 1971, found that the
Respondent's operations were not so integrated as to
require only a statewide unit as the Respondent con-
tended and that a unit comprised of the sales represent-
atives in the Respondent's Northside district sales office
was an appropriate bargaining unit.
The Respondent timely filed a request for review,
raising substantially the same issues as it did before the
Regional Director. On September 23, the Board denied
the request as raising no substantial issues warranting
review. In the representation election thereafter held,
the Union received a majority of the votes cast. No
objections to the conduct of the election were filed, and
the Union was certified as the exclusive representative
on October 4.
In this proceeding, the Respondent is attempting to
relitigate the issues raised and determined in the under-
lying representation case in order to preserve them for
judicial review.
It is well settled that in the absence of newly discov-
ered or previously unavailable evidence or special cir-
cumstances 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 litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior repre-
sentation proceeding, and the Respondent does not
offer to adduce at a hearing any 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
' 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 (1) and 102 . 69(c).
195 NLRB No. 130
MICHIGAN HOSPITAL SERVICE
the representation proceeding. We therefore find that
the Respondent has not raised any issue which is prop-
erly 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:
FINDING OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a nonprofit corporation organ-
ized under the laws of the State of Michigan and en-
gaged in the marketing and sale of prepaid hospitaliza-
tion and surgical protection to both group and
individual subscribers under the names of "Blue Cross"
and "Blue Shield." In the course of its business opera-
tions the Respondent maintains various offices located
throughout the State of Michigan, including a district
office at 13859 East Eight Mile Road, Warren, Michi-
gan, known as the Northside office. That office is the
only facility involved in this proceeding. During the
year ending December 31, 1970, a representative
period, the Respondent performed services valed in
excess of $500,000 in the course and conduct of its
business operations and received premiums valued in
excess of $50,000 from insurance policies with General
Motors Corporation in the State of Michigan, which
annually sells and ships products valued in excess of
$50,000 from its Michigan plants directly to points
located outside the State of Michigan.
We find, on the basis of the foregoing, that Respond-
ent 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 Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW) 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 sales representatives of the Respondent's Mar-
keting Division, employed by the Respondent as
its Northside district office located in Detroit,
Michigan; but excluding all office clerical em-
721
ployees, professional employees , confidential em-
ployees, guards and supervisors as defined in the
Act.
2. The certification
On September 24, 1971, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Direc-
tor for Region 7, designated the Union as their repre-
sentative for the purpose of collective bargaining with
the Respondent. The Union was certified as the collec-
tive-bargaining representative of the employees in said
unit on October 4, 1971, and the Union continues 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 October 14, 1971, and at
all times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on or
about October 26, 1971, 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 collective bar-
gaining of all employees in said unit.
Accordingly, we find that the Respondent has, since
October 26, 1971, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate unit,
and that, by such refusal, Respondent 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 LABOR PRACTICES
UPON COMMERCE
The activities of the 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 commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce.
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, bar-
gain collectively with the Union as the exclusive repre-
sentative of all employees in the appropriate unit, and,
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if an understanding is reached, embody such under-
standing in a signed agreement.
In order to insure that the employees in the appropri-
ate unit will be accorded the services of their selected
bargaining agent for the period provided by law, we
shall construe the initial period of certification as begin-
ning on the date Respondent commences to bargain in
good faith with the Union as the recognized bargaining
representative in the appropriate unit. See Mar-Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421, enfd. 350 F.2d 57 (C.A. 10).
The Board, upon the basis of the foregoing facts and
the entire record, makes the following:
CONCLUSIONS OF LAW
1. Michigan Hospital Service is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW) is a labor organization within the
meaning of Section 2(5) of the Act.
3. All sales representatives of the Respondent's Mar-
keting Division, employed by the Respondent at its
Northside district office located in Detroit, Michigan;
but excluding all office clerical employees, professional
employees, confidential employees, guards and super-
visors as defined in the Act constitute a unit appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since October 4, 1971, the above-named labor
organization has been and now is the certified and ex-
clusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about October 26, 1971, 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 Respond-
ent 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 in-
terfering 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 engag-
ing in unfair labor practices within the meaning of
Section 8(a)(1) 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 Re-
lations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, Michigan Hos-
pital Service , its officers , agents, successors , and as-
signs, 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 International Union, United Au-
tomobile, Aerospace and Agricultural Implement
Workers of America (UAW) as the exclusive bargain-
ing representative of its employees in the following ap-
propriate unit:
All sales representatives of the Respondent's Mar-
keting Division, employed by the Respondent at
its Northside district office located in Detroit,
Michigan ; but excluding all office clerical em-
ployees, confidential employees , guards and super-
visors 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 la-
bor organization as the exclusive representative of all
employees in the aforesaid appropriate unit with re-
spect 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 agree-
ment.
(b) Post at its Northside district office copies of the
attached notice marked "Appendix."' Copies of said
notice, on forms provided by the Regional Director for
Region 7, after being duly signed by Respondent's rep-
resentative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily 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 7, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
' In the event this Order is enforced by a Judgement of a United States
Court of Appeals , the words in the notice reading "POSTED BY ORDER
OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed
to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED
STATES COURT OF APPEALS ENFORCING AN ORDER OF THE
NATIONAL LABOR RELATIONS BOARD."
MICHIGAN HOSPITAL SERVICE 723
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 Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW) as the exclusive representative of the em-
ployees in the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 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, embody
such understanding in a signed agreement. The
bargaining unit is:
All sales representatives of the Respondent's
Marketing Division, employed by the Re-
spondent at its Northside district office
located in Detroit, Michigan; but excluding
all office clerical employees, professional em-
ployees, confidential employees, guards and
supervisors as defined in the Act.
MICHIGAN HOSPITAL
SERVICE
(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 compliance
with its provisions may be directed to the Board's
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 313-226-
3200.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD