Children's Receiving Home of Sacramento

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Children's Receiving Home of Sacramento and Social Services Union Local 535, Service Em- ployees International Union, AFL-CIO. Case 20-CA-14864 March 11, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on September 20, 1979, by Social Services Union Local 535, Service Employ- ees International Union, AFL-CIO, herein called the Union, and duly served on Children's Receiv- ing Home of Sacramento, herein called Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, issued a complaint on October 25, 1979, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor prac- tices 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 and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on July 17, 1979, following a Board election in Case 20-RC- 14800, the Union was duly certified as the exclu- sive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about August 20, 1979, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On November 1, 1979, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On November 23, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on November 30, 1979, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Sum- mary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show i Official notice is taken of the record ill the rcprescntationll proced- ing. Case 20-RC- 14800. as the term "record" is defir'd il Secs 1028, and 102 6 9(g) of the Board's Rules and Regulations. Series , as amended See LTV Elecirolystenm. In(.'. 166 NLRiB 938 (196h7. iIfd 388 F 2d 83 (4th Cir 1968); Golden Age Bverage (o>. 167 NLRB ISI l967). enifd 415 F2d 26 (5lh Cir 1969); Iterrype Co X Pe lflio. 269 F Supp 573 (DC Va. 1967); Follett Corp, It)4 NLRB 378 (1967). enfd 397 2d 91 (7th Cir 1968). Sec 9d) If the NLRA. as amended 248 NLRB No. 53 Cause, and a Cross-Motion for Summary Judgment and/or Motion for Hearing. 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 General Counsel's Motion for Summary Judgment and Respondent's Cross- Motion for Summary Judgment and/or Motion for Hearing Counsel for the General Counsel contends that it is entitled to summary judgment because all the factual and legal issues raised by Respondent have been determined by admissions in its answer to the complaint or by the Board's prior determination in the representation proceeding (Case 20-RC-14800). Respondent asserts as affirmative defenses to the complaint and the Motion for Summary Judgment that the complaint fails to state a claim upon which relief may be granted, that the certification upon which the complaint is based is not proper since the Board did not and does not have jurisdiction over Respondent, that recent events and facts con- stitute new evidence clearly demonstrating that the Board lacks jurisdiction over Respondent, and that the information requested by the Union is not rel- evant to its role as the collective-bargaining repre- sentative of the employees of Respondent. We find no merit in Respondent's position. In determining whether a complaint states a claim upon which relief may be granted, the test is whether the allegations therein, if true, set forth a violation of the Act. We have reviewed the com- plaint in the instant matter and conclude that it clearly sets forth a violation of the Act. Respondent's assertion that the Board lacks juris- diction over it is based on arguments which were fully litigated in the representation proceeding. Prior to denying Respondent's request for review in that matter, the Board specifically considered Respondent's argument that it lacked sufficient control over its labor relations to engage in mean- ingful collective bargaining. After reviewing the entire record in that proceeding, the Board con- cluded that the evidence clearly supported the Re- gional Director's determination to the contrary. Respondent now urges us to reconsider our deter- mination of jurisdiction in light of the recently issued decision in Lutheran Welfare Services of Illi- nois v. N.L.R.B.2 In that case, the court held that the Board lacked jurisdiction over the employer be- cause an employer who was exempt from the Act ex- 0(7 F 2d 777 (7th Cir 1979) CHILDREN'S RECEIVING HOME OF SACRAMENTO 309 erted such a degree of control over the unit employees as to constitute a 'joint employer. " In so holding, the court relied upon a statute, 42 US.C. sec. 2928f(a), which required the exempt employer to "adopt for itself and other agencies using funds or exercising au- thority for which it is responsible [i.e., the nonexempt employer], rules designed to establish specific stan- dards governing salaries, salary increases, travel and per diem allowances, and other employee benefits .... (emphasis added)." Here the Department of Social Welfare for the County of Sacramento, through its director, submits recommendations as to the precise number of positions needed at the Home and the precise level of wages and benefits to be assigned to each position; however, the Re- spondent is free to deviate from these recommenda- tions. Under these circumstances we do not find that the Department of Social Welfare exerts a suf- ficient degree of control over the unit employees so as to constitute a "joint employer." According- ly, we conclude that Respondent is subject to our jurisdiction. Respondent's allegation that recent events and facts constitute new evidence is unsupported by af- fidavit or otherwise. A mere allegation of the exis- tence of new evidence is not enough; in such cir- cumstances Respondent must allege specifically what facts and events constitute new evidence so that the Board maymake a meaningful determina- tion as to whether the facts and events, if true, are sufficient to alter the result.3 As to Respondent's allegation that the informa- tion requested by the Union is not relevant, it is sufficient to say that the information goes to the identity of the unit members, their wages and bene- fits, and to the work rules under which the unit members must operate. Such information has long been held to be presumptively relevant and Re- spondent has neither presented nor alleged the exis- tence of any evidence to overcome that presump- tion. 4 All other issues raised by Respondent in this pro- ceeding were or could have been litigated in the prior representation proceeding, and Respondent does not offer any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a re- spondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues :' See. e g 14,r,n Eictrnt C (opat. IlHalihorneu W',rk, 198 NLRB 623 (1 97 2) 4 See, e.g. .4vdin Ecrgy Di:irn. 245 NI.RB No 66 (1979); ierona Dy'etruff Divisho Mahay Chem l cal Corporation. 233 NI. R 109 ( 1977) which were or could have been litigated in a prior representation proceeding.5 We therefore find that Respondent has not raised any issue other than those discussed above which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the General Counsel's Motion for Sum- mary Judgment and deny the Respondent's Cross- Motion for Summary Judgment and/or Motion for Hearing. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent is a nonprofit, charitable corpo- ration licensed by the State of California to provide short-term residential treatment care for approxi- mately 70 boys and girls, aged 2 through 18. During the past calendar year the Respondent, in the course and conduct of its business operations, received gross revenues in excess of $600,000. During that same period the Respondent purchased directly from suppliers located outside the State of California goods, materials, and supplies valued in excess of $2,000. We find, on the basis of the foregoing, that Re- spondent 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. II1. THE LABOR ORGANIZATION INVOLVED Social Services Union Local 535, Service Em- ployees International Union, AFL-CIO, 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 Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time child care workers, housekeepers, food service workers, maintenance workers, clerical workers and li- censed vocation nurses employed by the Re- spondent at its facility located at 3555 Auburn Boulevard, Sacramento, California; excluding ' See PIlrhiUrh Plawr Gla~e Co .¥ L R Bl 313 U S 146. 162 (1941): Rules and Regulations of the Board. Secs 102 67(n and 102 69(c) 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD confidential employees, managerial employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On July 9, 1979, 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 20 designated the Union as their representative for the purpose of collective bargaining with Respondent.The Union was certi- fied as the collective-bargaining representative of the employees in said unit on July 17, 1979, 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 July 24, 1979, the Union has requested Respondent to furnish it with the following information: Names, dates of hire, rates of pay, and clas- sifications for all current employees in the bar- gaining unit; Job descriptions of all covered classifica- tions; Copies of any manuals, rule books or other materials governing employee conduct; and Copies of materials detailing all current fringe benefits, and showing eligibility require- ments, employer costs, employee costs and copies of insurance and pension plans. Since on or about August 20, 1979, and continu- ing to date, Respondent has failed and refused to furnish the Union the requested information. On or about October 4, 1979, the Union request- ed Respondent by letter to recognize it as the ex- clusive collective-bargaining representative of Re- spondent's employees in the unit described above and to bargain collectively with it as the exclusive collective-bargaining representative of said employ- ees with respect to their rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about October 4, 1979, Respondent has failed and refused to recognize and bargain with the Union as the exclusive collective-bargain- ing representative of its employees in the unit de- scribed above. Accordingly, we find that Respondent has, since August 20, 1979, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices 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 Children's Receiving Home of Sacramento set forth in section III, above, oc- curring in connection with its operations described in section I, above, have a close, intimate, and sub- stantial 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; pro- vide the Union with the information which it re- quested July 24, 1979; upon request, bargain collec- tively with the Union as the exclusive representa- tive of all employees in the appropriate unit; and, if an understanding is reached, embody such under- standing in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Children's Receiving Home of Sacramento is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Social Services Union Local 535, Service Em- ployees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time child care workers, housekeepers, food service workers, main- tenance workers, clerical workers and licensed vo- cation nurses employed by the Respondent at its fa- cility located at 3555 Auburn Boulevard, Sacra- mento, California; excluding confidential employ- ees, managerial employees, professional employees, CHILDREN'S RECEIVING HOME OF SACRAMENTO 311 guards and supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. Since July 17, 1979, the above-named labor or- ganization has been and now is the certified and ex- clusive representative of all employees in the afore- said apropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about August 20, 1979, and at all times thereafter, to provide information which is relevant to the collective-bargaining pro- cess to the above-named labor organization as the exclusive bargaining representative of all the em- ployees of Respondent in the appropriate unit, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By refusing on or about October 4, 1979, and at all times thereafter, to bargain collectively with the above-named labor oraganization as the exclu- sive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices with the meaning of Section 8(a)(5) of the Act. 7. By the aforesaid refusals to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 8. 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 Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Children's Receiving Home of Sacramento, Sacra- mento, California, its officers, agents, successors, 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 Social Services Union Local 535, Service Employees International Union, AFL-CIO, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All full-time and regular part-time child care workers, housekeepers, food service workers, maintenance workers, clerical workers and li- censed vocation nurses employed by the Re- spondent at its facility located at 3555 Auburn Boulevard, Sacramento, California; excluding confidential employees, managerial employees, professional employees, guards and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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 understanding is reached, embody such under- standing in a signed agreement. (b) Provide the above-named labor organization with the following information: Names, dates of hire, rates of pay, and clas- sifications for all current employees in the bar- gaining unit; Job descriptions of all covered classifica- tions; Copies of any manuals, rule books, or other materials governing employee conduct; and Copies of materials detailing all current fringe benefits, and showing eligibility require- ments, employer costs, employee costs and copies of insurance and pension plans. (c) Post at its Sacramento facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Di- rector for Region 20, after being duly signed by Respondent's representative, shall be posted by Re- spondent 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. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. In he een I hat thi, Order i, eforced bh at Jludgment 1 ,I L'tired Stalts', Court of Appeal, the x rd,Js in the nlotice re.dinig 'Poted hb Ordetl of the NationatJl I hior Rliolls B,,, t .. h.I J [C.l d j s-tcd Pu'.ts- tnt to . JdgntCrll o t tUnited SIt'c ( ,t l A ,I Arp lds FI'or, mg i Order of the Nhltrl.lI Relations Ho.rd" 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Social Services Union Local 535, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below.WE WILL NOT in any like or related manner inter- fere 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 represen- tative 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 understanding in a signed agreement. The bargaining unit is: All full-time and regular part-time child care workers, housekeepers, food service work- ers, maintenance workers, clerical workers and licensed vocation nurses employed by Children's Receiving Home of Sacramento at its facility located at 3555 Auburn Boule- vard, Sacramento, California; excluding con- fidential employees, managerial employees, professional employees, guards and supervi- sors as defined in the Act. WE WILL provide the above-named Union with the following information: Names, dates of hire, rates of pay, and classifications for all current employees in the bargaining unit; Job descriptions of all covered classifica- tions; Copies of any manuals, rule books, or other materials governing employee con- duct; and Copies of materials detailing all current fringe benefits, and showing eligibility re- quirements, employer costs, employee costs and copies of insurance and pension plans. CHILDREN'S RECEIVING HOME OF SACRAMENTO