Michigan Hospital Service

National Labor Relations Board - Board Decisions

Nov 5, 1971

194 N.L.R.B. 33 (N.L.R.B. 1971)

MICHIGAN HOSPITAL SERVICE 33
Michigan Hospital Service and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America, (UAW). Case
7-CA-8900
November 5, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
Upon a charge filed on August 17, 1971, by
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 Respon-
dent, the Acting General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 7, issued a complaint on August 19, 1971,
against Respondent, alleging that Respondent 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, 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
complaint alleges, in substance, that on August 6,
1971, following a Board election in Case 7-RC-10568,
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 August 12, 1971, and at all
times thereafter, Respondent has refused, and contin-
ues to date to refuse, to bargain collectively' with the
Union as the exclusive bargaining representative. On
August 27, 1971, Respondent filed its answer, to the
complaint admitting in part, and denying in part, the
allegations in the complaint. The Respondent admits,
in substance, all of the factual allegations of the
complaint, including its refusal to recognize and
bargain with the Union, but denies the appropriate-
ness of the unit and the validity of the certification.
On September 2, 1971, the Union filed with the
Board a Motion for Judgment on the Pleadings, and
on September 10, 1971, counsel for the i General
Counsel filed with the Board a Motion To ransfer
Case to and Continue Proceeding Before the Board
and for Judgment on the Pleadings, both of which
shall be treated as Motions for Summary Judgment.
The motions, herein considered together, allege that
there are no factual issues in dispute which would
warrant a hearing and that the Respondent has raised
no issues in its answer which were not previously
considered and decided in Case 7-RC-10568; and
they move that the Board make findings of fact,
conclusions of law, and a remedial order consistent
with the allegations of the complaint. Subsequently,
on September 16, 1971, the Board issued an order
transferring the proceeding to the Board and a Notice
To Show Cause why the General Counsel's Motion
for Summary Judgment should not be granted. The
Respondent failed to file ,a response to Notice To
Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with 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
As reflected above, the Respondent's answer
admits, in substance, all of the factual allegations of
the complaint, including its refusal to recognize and
bargain with the Union which had been certified as
the collective-bargaining representative of the em-
ployees described in the complaint. Affirmatively, the
Respondent raises defenses relating to the appropri-
ateness of the unit and the validity of the certification.
The Respondent through its answer is attempting to
relitigate the same issues which it raised in the
representation proceeding in Case 7-RC-10568 which
was denied by the Board in its Request for Review on
July 27, 1971.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances 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.2
All issues raised by the Respondent in this proceed-
ing were or could have been litigated in the prior
representation 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 the representation proceeding. We therefore
find that the Respondent has not raised any issue
1 Official notice is taken of the record in the representation proceeding, 269 F.Supp. 573 (D C. Va., 1967); Follett Corp, 164 NLRB 378, enfd 397
Case 7-RC-10568, as the term "record" is defined m Secs. 102.68 and F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA.
102.69(f) of the Board 's Rules and Regulations , Series '8, as amended . See 2 See Pittsburgh Plate Glass Co. v. N. L KB., 313 U.S. 146, 162 (1941);
LTV Electrosystems, Inc., 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, Rules and Regulations of the Board , Secs. 102.67(f) and 102.69(c).
1968); Golden Age Beverage Co., 167 NLRB 151; Intertype Co. v, Penello,
194 NLRB No. 7
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which is properly litigable in this unfair labor practice
proceeding. We shall, accordingly, grant the General
Counsel's Motion for Summary Judgment and there-
fore find it unnecessary to rule on the Union's Motion
for Summary Judgment.
On the basis of the entire record, the, Board makes
the following:
FINDINGS OF FACT
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All sales representatives of the Employer's Mar-
keting Division, employed by the Employer at its
Westside district office located in Detroit, Michi-
gan; but excluding all office clerical employees,
professional employees, confidential employees,
guards and supervisors as defined in the Act.
1. THE BUSINESS OF THE RESPONDENT
The Respondent is, and has been at all times
material herein, a nonprofit corporation duly organ-
ized under, and existing by virtue of, the laws of the
State of Michigan. At all times material herein,
Respondent has been engaged in the marketing and
sale of prepaid hospitalization and surgical protection
under the name of "Blue Cross" and "Blue Shield"
both to, group and individual subscribers. In the
course of its business operations, Respondent main-
tains various offices which are located throughout the
State of Michigan, including a district office located
at 24350 Joy Road, Detroit, Michigan, known as the
Westside office. The Westside office is the only
facility involved in this proceeding. During the year
ending December 31, 1970, which period is represent-
ative of its operations during all times material hereto,
Respondent, in the course and conduct of its business
operations, performed services valued in excess of
$500,000. During the same period, it received premi-
ums valued in excess of $50,000 from insurance
policies with General Motors Corporation, located in
the State of Michigan, which company 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
Respondent 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
International Union, United Automobile, Aeros-
pace and Agricultural Implement Workers of Ameri-
ca, (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-
2. The certification
On July 29, 1971, 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 7, designated the Union as their
representative for the purpose of collective bargaining
with the Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 6, 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 August 12, 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 bargaining of all employ-
ees in said unit.
Accordingly, we find that the Respondent has, since
August 12, 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 com-
merce 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
MICHIGAN HOSPITAL SERVICE 35
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
appropriate 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 beginning on the date Respondent commences to
bargain in good faith with the Union as the recogniz-
ed bargaining representative in the appropriate unit.
See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/bla 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, Ae-
rospace 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 Employer's
Marketing Division, employed by the Employer at its
Westside district office located in Detroit, Michigan;
but excluding all office clerical employees, profession-
al employees, confidential employees, guards and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since August 6, 1971, 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 August 12, 1971, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent 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
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
3 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 be changed to read "Posted
Section 7 of the Act, and thereby has engaged in and
is engaging 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 mean-
ing 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
Relations Board hereby orders that Respondent,
Michigan Hospital Service, its officers, agents, succes-
sors, 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 International Union, United
Automobile, Aerospace and Agricultural Workers of
America, (UAW), as the exclusive bargaining repre-
sentative of its employees in the following appropriate
unit:
All sales representatives of the Employer's Mar-
keting Division, employed by the Employer at its
Westside district office located in Detroit, Michi-
gan; but excluding all office clerical employees,
professional employees, confidential employees,
guards and supervisors 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
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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its Westside district office located in
Detroit, Michigan, copies of the attached notice
marked "Appendix." 3 Copies of said notice, on forms
provided by the Regional Director for Region 7, 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 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
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board."
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America,
(UAW), 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 employees 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 representative 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 under-
standing in a signed agreement. The bargaining
unit is:
All sales representatives of the Employer's
Marketing Division, employed by the Em-
ployer at its Westside district office located in
Detroit, Michigan;' but excluding all office
clerical employees, professional employees,
confidential employees, guards and supervi-
sors 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.