Oesterien Services for Youth, Inc.

OI:SI I RI.IN SIR;1(.S FOR Y 1 I t. IN(. Oesterlen Services for 'outh, Inc. and Service, lospi- tal, Nursing Home and Public Employees Union, I,ocal No. 47, affiliated with the Service Employees International Union, AFI.-CIO. ('ase 9 CA -13684 .luls 19, 1979 DEC'ISION AND O()RDiR BY Mt M11IRS Pt.NI I (. Mt RIRPII, ANI) ]'RI I Sl)AI I Upon a charge filed on April 2, 1979. b Serice, Hospital. Nursing ornome and Public Irmployees Union. I.ocal No. 47. affiliated with the Service tnlm- ployees International Union, AFL ('1 . herein called the Union. and duly served on Oesterlen Ser- vices for Youth, Inc., herein called Respondent. the General ('ounsel of the National I.abor Relations Board, by the Regional Director for Region 9. issued a complaint and notice of hearing on April 19, 1979. 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 (I) and Section 2(6) and (7) of' the Na- tional Labor Relations Act, as amended. Copies of' the charge, 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 com- plaint alleges in substance that on December II11 1978, following a Board election in Case 9 RC 12556, 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 March 13, 1979, 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, al- though the Union has requested and is requesting it to do so. Thereafter, Respondent filed its answer to the complaint admitting in part. and denying in part, the allegations in the complaint. On May 10, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment with exhibits attached. Subsequently, on May 22, 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 Official notice is taken of the record in the representation proceeding. Case 9-RC 12556, as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosy'ser s Inc., 166 NLRB 938 (1967). enid. 388 F.2d 683 (4th Cir 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967), enld 415 F.2d 26 (5th Cir. 1969); Interope Co . Penello, 269 F Supp. 573 (D.C'Va, 1957): Follett Corp. 164 NLRB 378 (1967), enfd 397 F.2d 91 (7th Cir. 1968). Sec 9(d) of the NLRA, as amended. thereaftcr filed a document entitled "'Memorandtiunl in Opposition to the (;eneral ('ounsel's Motion for Sutllmalr .l udtgme nt" as its response to the Notice 'l'o Show (Caluse. I'u)rsuant to the provisions of' Section 2(h) of tilhe National L.abor Relations Act, as amended. the Na- tional labor Relations Board has delegated its au- thoritN ill this proceeding to ,a three-member panel. U;pon the entire record in this proceeding. the Board makes the following: Ruling on the Motion fr Sulmar- .ludgmenIt In its answer to the complaint Respondent amits the request and refusal to bargain. In its respotnse to the Notice o Show C'ause. howexer. Respondent as- serts that the Inion's certificatio n was improper on the basis of Respondent's objections to the election in the underlsinig representation proceeding. Review of the record herein. including the record in ('ase 9 RC 12556, reveals that, pursuant to a I)eci- sion antid Direction of lection issued b\ the Regional [)irector fr Region 9, an election w\as conducted on October 20, 1978. which resulted i a vote of' 17 votes for and 12 votes against the Union. with 4 challenged ballots. Thereafter Respondent filed timely objec- tiolns to the conduct of the election and to conduct aftecting g the results of the election. alleging in sub- stance that during the election: (I) the Board agent supervising the election left the polling area with the ballot box unsealed: (2) the union observer engaged in electioneering while the Board agent was absent by passing a note to a voter and talking with voters in the polling area: and (3) the union observer had an unofficial voter eligibilit's list on the table in the poll- ing area. After investigation, the Regional Director issued his Supplemental Decision and Certification of Rep- resentative on D)ecember I I 1978. in which he over- ruled Respondent's objections in their entirety and certified the Union as the exclusive bargaining repre- sentative of the employees in the appropriate unit. Thereafter, Respondent filed a request for review of' the Regional Director's supplemental decision. By telegraphic order dated February 5, 1979, the Board denied Respondent's request for review. It thus ap- pears that Respondent in this proceeding is attempt- ing to relitigate issues fully litigated and finally deter- mined in the representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitiga;e issues which were or could have been litigated in a prior representation proceeding.- ISee Pilhburgh Phml't (lua (o, .1i R B, 313 UlS. 146. 162 (1941): Rules and Regul.ations of the Boa.rd. Sec 102 67(f1 nd 102 69(c). 243 NLRB No. 88 563 I)t.( 'ISIO()NS OF NA I IONAI. I.AB)R R.AIONS BO()ARI) All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding. and Respondent does not ofer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege any spe- cial circumstances which would require' the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. In this proceeding. Respondent contends, in ect, that due process entitles it to a hearing on its objec- tions to the election. Prior to denying Respondent's request for review, the Board considered the Regional Director's supplemental decision and the matters raised in the request for review, including Respon- dent's contention that a hearing on its objections was warranted. By denying Respondent's request for review, the Board necessarily found that the objections raised no substantial or material issues warranting a hearing.4 Further, it is well established that the parties do not have an absolute right to a hearing on hbjections to an election. It is only when the moving party presents a prima Jfici showing of substantial and material is- sues which would warrant setting aside the election that it is entitled to an evidentiary hearing. It is clear that, absent arbitrary action, this qualified right to a hearing satisfies the constitutional requirements of due process5 Accordingly, we grant the Motion for Summary Judgment.6 On the basis of the entire record, the Board makes the followings: FINDIN(;S OF FA( I 1. TE BUSINESS OF RESPONDENT Respondent, on Ohio corporation, is engaged in the operation of a mental health care facility at Spring- 3 Respondent asserts here that in its request for review it set forth "special circumstances" warranting the Board's reexamination of the representation proceeding. It did not, however, in its request for review specifically state what these "special circumstances" were nor does it do so in this proceeding. Furthermore. the Board in its telegraphic order denying Respondent's re- quest for review indicated that there were no substantial or material issues warranting review. 4 See Madisonville Concrete Co.. a Division of Corum & Edvards. Inc., 220 NLRB 668 (1975); Evansville Auto Paris, Inc.. 217 NLRB 660 (1975). 5 GTE Lenkurt, Incorporated, 218 NLRB 929 (1975): Heavenlv Vall' Sk, Area, a California Corporation. and Heavenly Valley, a Partnership. 215 NLRB 734 (1974); Amalgamated Clothing Workers of America /Winfield Manufacturing Company, Inc. v. N.L.R.B., 424 F.2d 818. 828. (D.C Cir. 1970). 6 In its answer to the complaint. Respondent denies the allegation that a majority of the employees designated and selected the Union as their repre- sentative for purposes of collective bargaining. Respondent, however, does not dispute the validity of the tally of the ballots. We therefore find that Respondent's denial raises no substantial or material issue warranting a hearing. field, Ohio. During the 12-month period preceding is- suance of the complaint, a representative period. Re- spondent received gross revenues in excess of $250,0()0 and purchased and received goods and ma- terials vllued in excess of' $50,000() from suppliers lo- cated in the State of Ohio. each of' which, in turn. purchased and received the said goods and materials at their locations in the State of ()hio directly from points outside the State of Ohio. We find, on the basis of the foregoing. that Respon- dent 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. IIL LABOR O)R(iANI/AIION INV()I.VtI) Service. Hospital. Nursing Home and Public Em- ployees Union. .ocal No. 47. affiliated with the Ser- vice Employees International Union. AF. ('10. is a labor organization within the meaning of Section 2(5) of the Act. III. 1111 tUNIAIR I.i()OR PRAII( IlS A. i'h1e Rep/resentlaion Proceeding I. The Unit The fllowing employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All child care workers, recreation workers, cooks, housekeepers, house parents, and mainte- nance men employed by the Respondent in its Residential Treatment Program at Springfield. Ohio; excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 2. The certification On October 20, 1978, a majority of' the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 9. designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on December 11, 1978, and the Union con- tinues to be such exclusive representative within the meaning of Section 9(a) of the Act. 564 O()SIIRI.IN SRVI('S I O()R YO()tl I IN(' B. The Request To Bargain and Re.Votdent1's Re/llial Commencing on or about December 18. 1978. and at all times thereafter. the Union has requested Re- spondent to bargain collectively with it as the xclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about March 13, 1979, and continuing at all times thereafter to date, Respondent has refused, and con- tinues to refuse, to recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has. since March 13, 1979, 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 en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (I) of the Act. IV. TIlE I:E(I(]' -IF t' NFAIR lABOR P'RA('Ii( 'IS UPO()N ('OMMNIR('I The activities of 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 com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. \'. ItHE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (I) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the ap- propriate unit, and. if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultn Company, Inc., 136 N LRB 785 (1962); Commerce Company dhb/a Lamar Hotel. 140 NLRB 226, (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817: Burnett Con.truction 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: I. Oesterlen Serxices for Youth. Inc.. i anl cm- ploer engaged in commerce within the nleagili of Section 2(6) and (71 of the Act. 2. Service. Hospital, Nursing Iloime and Pubhlic Emplo , ees Union, l.ocal No. 47. affiliated with the Service mplo ees International Inion. AlI. ( 1(). is a labor organization \within the meaning of Section 2(5) of the Act. 3. All child care workers, recre;tion 1orkers. cooks, housekeepers. house parents. and nlaintenance men emplo)ed bh the Respondent in its Residential T'reatment Program at Springfield. Ohio: excluding all office clerical cmplosees, guards and super\ isors as defined in the Act. constitute a unit appropriate lor the purposes of' collective bargaining within the meaning of Section 9(h) of the Act. 4. Since [)ecember 11. 1978, the abhoc-nalncd la- bor organization has been and no\, is the certified andi exclusive representative of all emplosces in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of' Section 9(a) of the Act. 5. B refusing on or about March 13. 1979. and at all times thereafter. to bargain collectively with the above-named labor organization as the exclusi e bar- gaining representative of all the emplo\ees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfaiir labor practices within the meaning of Section 8(a)(5) of the Act. 6. B the aforesaid refusal to bargain. Respondent has interfered ith, restrained, and coerced. and is interfering with, restraining. allnd coercing. employees in the exercise of the right, guaranteed them in Sec- tion 7 of the Act. and thereb has engaged in and is engaging in unfair labor practices within the meaning of Section 8X(:a)( I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices aflecting commnerce within the mean- ing of Section 2(6) and (7) of the Act. ORD)ER Pursuant to Section 10(c) of the National L.abor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent. Oes- terlen Services for Youth. Inc.. Springfield. Ohio. its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain collectivel concerning r:Ites of pas, wages, hours. and other terms and con- ditions of emploiyment with Service. Hospital. Nurs- ing Home and Public Employees Union. l.ocal No. 47. affiliated with the Services Employees Interna- tional Union, AFL CIO. as the exclusive bargaining s6 Com I ( SI( )-,
s ( ) I - I)I.('ISI()NS )I1 NA I I()N. I.AB()R RI.A I IONS B()ARI) representative of its employees in thie tolloinlg ap- propriate unit: All childI care workers, recreation workers, cooks, housekeepers, house parents, and mainte- nance men employed b the Respondent in its Residential Treatment Program at Springfield Ohio: excluding all office clerical employees proiessional employees, guards and supervisors as defined in the Act. (h) In any like or related manner interfering with, restraining, or coercing employees in the excerise of the rights guaranteed them in Section 7 of the Act. 2. Take the ftllowing afirmative 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 facility located at Springfield, Ohio, copies of the attached notice marked "Appendix.7" Copies of said notice, on forms provided by the Re- gional Director for Region 9, 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. In the erent 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 l.abor Relations Board" shall read "Posted Pursuant to a Judgment of the nited States Court of Appeals Enforcing an Order of the Nati,nal Labor Relations Board." (c) NotiFy the Regional D)irector bor Region 9, in writing, within 20 idays from the date of this Order, what steps have been taken to comply herewith. A I'.NI)IX Noi I( 1 1o LNMIPI. )YNI'IS P(Os-II) B' ORI)IR OF 1111l NAII()NAI. IAB()R RI AII()NS B()ARI) An Agency of the United States (overnment WI wIIll. NI refuse to bargain collectively concerning rates of pay, wages hours, and other terms and conditions o employment with Ser- vice, hlospital Nursing llomc and Public Em- ployees Union, Local No. 47, affiliated with the Service lEmployees International Union, AFL ('1(), as the exclusive representative of the em- ployees in the bargaining unit described below. Wi WVI.l. NOI 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. Wl: vil., 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 employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All child care workers, recreation workers, cooks, housekeepers, house parents, and main- tenance men employed by the Respondent in its Residential Treatment Program at Spring- field, Ohio; excluding all office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. OESIIRtI.IN StRVI( S FOR YouIHI. IN(C. 56(