Lutheran Welfare Services of Illinois

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lutheran Welfare Services of Illinois and Local No. 372, Service Employees International Union, AFL- CIO United Christian Community Services and Local No. 372, Service Employees International Union, AFL- CIO. Cases 13 C(A-14979 and 13 CA 15184 June 19, 1978 DECISION AND) ORDER BY CttAIRMAN FANNING( ANI) Mt:1HIBERS JENKINS AN) TRU ESI)AI I Upon charges filed on December 17, 1975, against Lutheran Welfare Services of Illinois (herein LWSI) and on February 20, 1976, against United Christian Community Services (herein UCCS) by Local No. 372, Service Employees International Union, AFI. CIO, herein called the Union, and duly served on LWSI and UCCS, herein called Respondents, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 13, is- sued an order consolidating cases and amended con- solidated complaint on June 25, 1976, against Re- spondents, alleging that Respondents had engaged in and were 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 National Labor Relations Act, as amended. Copies of the charges and order consolidating cases and amended consoli- dated complaint were duly served on the parties to this proceeding. With respect to the unfair labor practices, the con- solidated complaint alleges in substance that on April 21, 1975, and on May 30, 1975, following Board elections in Cases 13-RC-13370 and 13 RC 13633, respectively, the Union was duly certified as the exclusive collective-bargaining representative of Respondents' employees in the units found appropri- ate;' and that, commencing on or about December 15, 1975, and at all times thereafter, Respondents have refused, and continue to date to refuse, to bar- gain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting them to do so. On June 30, 1976, Respondents filed their answers to the consoli- dated amended complaint admitting in part, and de- i Official notice is taken of the record in the representation proceeding. Cases 13 RC 13370 and 13 RC 13633. 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 .lV Eletr-.ovitec,$, Inc., 166 NI.RB 938 (1967), enfd. 38X F.2d 683 (CA 4, 1968); (;olden A4ge Beverage (o, 167 NL RB 151 (19671. enfd. 415 F 2d 26 (C.A. 5, 1969): Intertipe Co( Penello, 269 F.Supp. 573 (D)('.Va., 1967): Folel (Corp. 164 NI.RB 378 (1967), enfd 397 F.2d 91 (' A 7, 1968): Sec. 9(d) of the NLRA, as amended nying in part, the allegations in the complaint. On July 12, 1976, counsel for the General Counsel filed directly with the Board a motion to transfer the proceeding to the Board and Motion for Summary Judgment. On July 21, 1976, Respondents filed their Opposition to Complainant's Motion To Transfer Proceedings to the Board and Motion for Summary Judgment. Subsequently, on July 23, 1976, 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. Respondents thereafter filed a response to Notice To Show Cause entitled Opposition to General Counsel's Motion for Summary Judgment.2 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 their answer to the consolidated amended com- plaint and in their opposition to the Motion for Sum- mary Judgment and response to the Notice To Show Cause, which incorporated the UCCS's memoran- dum in support of its court action against the Board referred to, infra, Respondents admit all factual alle- gations of the complaints, but deny the jurisdiction of the Board and the propriety of the unit descrip- tions contained in the Board certifications. The Gen- eral Counsel contends that Respondents are attempt- ing here to relitigate matters already determined in the representation proceedings. Our examination of the record, including those in Cases 13-RC-13633 and 13-RC-13370, indicates that after a hearing in Case 13-RC-13370 (involving LWSI) the Regional Director transferred the case to the Board for resolution of the jurisdictional issue. On February 10, 1975, the Board issued a Decision and Order, 216 NLRB 518, finding that LWSI was engaged in commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert jurisdiction over LWSI and remanding the case to the Regional Director for further processing. The parties thereafter entered into a Stipulation for Certification Upon Consent Election, in accordance with which a secret-ballot election was conducted among the employees in the unit set forth in the stip- 2 On October 9. 1976, a document entitled "Decision and Order," 228 Nl.RB No 5. was issued in the above-entitled proceeding purportedly by a pariel of the Board. As the document was issued as a result of administrative error and did not bear the approval of a panel of the Board. the document was wvilthdrawn on February 28. 1977, by Board Order Withdrawing Docu- liment. 236 NLRB No. 106 1018 LUTHERAN WELFARE SERVICES OF ILLINOIS ulation. Professional employees balloted separately on the question of whether they wished to be repre- sented by the Union. The tally of ballots in the pro- fessional voting group revealed that the professional employees, by a vote of 38 to i, indicated a desire to be included in the unit with nonprofessionals. The combined tally of ballots for both voting groups re- vealed that the Union had been selected by a vote of 53 to 0, with I void ballot and I challenged ballot. As the challenged ballot would not affect the election, the Acting Regional Director certified the Union on April 21, 1975. On January 28, 1976, LWSI filed a petition for reconsideration and for hearing in Case 13 RC- 13370 arguing that it was treated disparately in light of the Board's precedents in YWCA 3 and Chicago Youth Centers,4 where the Board declined to assert jurisdiction over employees situated in identical cir- cumstances and that its Chicago-based operations were exempt under Section 2(2) of the Act 5 because they were funded by and followed the policies of Model Cities, an agency of the City of Chicago, a political subdivision. On April 7, 1976, the Board de- nied the petition as containing nothing not previous- ly considered. It thus appears that the jurisdictional and unit issues had been raised in the underlying rep- resentation case. 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 reliti- gate issues which were or could have been litigated in a prior representation proceeding.6 All issues raised by Respondent LWSI in this pro- ceeding were or could have been litigated in prior representation proceeding, and 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 3 Young Women's Christian Association of Metropolitan Chicago. 221 NLRB 262 (1975). Chicago Youth Centerr. 221 NLRB 1146 (1975). 5Sec. 2(2) of the Act provides: The term "employer" includes any person acting as an agent of an employer, directly or indirectly, but shall not include the United States or any wholly owned Government corporation, or any Federal Reserve Bank, or any State or political subdivision thereof, or any corporation or association operating a hospital, if no part of the net earnings Inures to the benefit of any private shareholder or individual, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer). or anyone acting in the capacity of officer or agent of such labor organiza- tion. 6See Pittsburgh Plate Glass Co v. NLRB., 313 U.S. 146, 162 11941); Rules and Regulations of the Board. Secs 102 67(f) and 102.69(c). find that Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding. In Case 13-RC-13633, involving the employees of UCCS, the Regional Director, after hearing, issued a Decision and Direction of Election in which he found, pursuant to a stipulation of the parties, that UCCS was engaged in interstate commerce within the meaning of the Act and further found that it would effectuate the policies of the Act to assert ju- risdiction over UCCS. Accordingly, he directed an election in a unit found to be appropriate. No request for review was filed within the time provided. On May 21, 1975, a secret-ballot election conducted among the employees in the unit found to be appro- priate resulted in the Union's selection by a vote of 38 to 24. The Regional Director, on May 30, 1975, certified the Union. On January 26, 1976, UCCS filed with the Board a petition for reconsideration of the decision in Case 13-RC-13633 similar to that filed by LWSI. By letter dated May 3, 1976, the Board denied UCCS's petition because, absent a re- quest for review, there was nothing to consider and further because, even if the petition were construed to be a request for review, it was untimely filed. In their opposition and response, Respondents not only incorporate their petitions for reconsideration and the arguments contained therein, but also point out that shortly after their petitions had been denied, the Board granted the Union's petitions for reconsid- eration and directed hearings in the YWCA and Chi- cago Youth Center cases as well as in three other cases involving day care and youth centers funded by the Model Cities. Instead of again petitioning the Board for reconsideration, the UCCS filed a Federal district court mandamus action seeking a hearing on the jurisdictional issue and an injunction against the Board proceeding in the instant unfair labor practice cases.7 In the memorandum in support of the court action, which as indicated above was incorporated in Respondents' response to the Notice To Show Cause, it was admitted that "the programs at YWCA, Chica- go Youth Centers and [UCCS's] facilities are identi- cal and are funded in precisely the same manner by Model Cities." 8 Because, upon reconsideration of the five other Model Cities cases, the Board might have wished to reconsider its decision herein, processing of the in- stant cases was deferred. After the hearings in the five reconsidered cases in which Model Cities' offi- 'I he court dismissed UCCS's action on October 8, 1976, because the Act provides tUCCS with adequate appellate relief. (United Christian Communitv Services, Christopher House v. Murphi, er als. 93 LRRM 2607, 80 LCI I1,907,1 s As noted above, LWSI and UCCS had, in effect, made similar conces- sions in their petition for reconsideration before the Board 1019 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cials testified, the Board, on the basis of the records developed therein, concluded that none of the five employers shared the 2(2) exemption of Model Cities as an agency of the City of Chicago and that it would effectuate the policies of the Act to assert jurisdiction over their operations. 9 As indicated above, Respondents have contended, and for purposes of the decision herein we accept the contention that their programs and funding by the Model Cities as well as the jurisdictional issue to be resolved were basically identical to those of the other five Chicago employers operating day care and youth care centers. On the basis of record evidence which included testimony of the Model Cities' officials, the Board found that it had, and would assert jurisdic- tion over the five employers operating such centers. Since admittedly Respondents' operations were also under the identical aegis of the Model Cities and gave rise to the identical jurisdictional question which the Board had resolved on the basis of record testimony, there remains no substantial or material factual issue with respect to jurisdiction over Re- spondents' operations sufficient to warrant litigation at a hearing.' 0 Since Respondents' submissions admit facts which establish the existence of statutory jurisdiction over their operations, the Board adheres to its earlier as- sertions of jurisdiction over Respondents herein. Ac- cordingly, we shall and do grant the General Coun- sel's Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENTS LWSI, a nonprofit Illinois corporation with its principal office and place of business in Chicago, Illi- nois, is engaged in the provision of various social services to the people of Illinois and operates four day care centers at various locations in Chicago, Illi- nois. During the past calendar year it received reve- nues in excess of $5 million and purchased and re- ceived supplies valued in excess of $148,000 directly from points outside the State of Illinois. 9 Young Women's Christian Association of Metropolitan Chicago, 235 NLRB No. 106 (1978): Chicago Youth Centers, 235 NLRB No. 126 (1978); Catholic Bishop of Chicago, A Corporation Sole, Department of Federal Pro- grams, 235 NLRB No. 105 (1978): The Chase House, Inc., 235 NLRB No. 107 (1978); Hull House Association, 235 NLRB No. 108 (1978). l0 It is well settled that the denial of a hearing where there are no substan- tial or material issues of fact does not violate due process. See, e.g., Crest Leather Manufacturing Corporation, 167 NLRB 1085 (1967), and cases cited in fn. I, enfd. 414 F.2d 421 (C.A. 5, 1969); Macomb Pottery Company. 157 NLRB 1616 (1966), enfd. 376 F.2d 450 (C.A. 7, 1967); N.L.R.B. v. Union Brothers, Inc., 403 F.2d 883 (C.A. 4, 1968). UCCS, a nonprofit Illinois corporation, operates three day care centers at various locations in Chica- go, Illinois. During the past calendar year it received revenues in excess of $1 million and purchased and received supplies valued in excess of $50,000 directly from points located outside the State of Illinois. We find, on the basis of the foregoing, that Re- spondents are, and have been at all times material herein, employers 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED Local No. 372, Service Employees 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 Proceedings 1. The units The following employees of Respondents consti- tute units appropriate for collective-bargaining pur- poses within the meaning of Section 9(b) of the Act: (a) All full-time and regular part-time em- ployees of LWSI at the day care sites of Cabrini- Holy Family, Unity, Winthrop, and Uptown in Chicago, Illinois; but excluding all guards and supervisors as defined in the Act. (b) All child care employees including teach- ers, teacher aides, social workers, social service aides, group workers, group workers aides, food service employees including cooks, clerical em- ployees including receptionists, maintenance employees and transportation employees em- ployed by UCCS at its Christopher House facil- ities located at Greenview Avenue, Eastwood Avenue and Lakeside Place, Chicago, Illinois; but excluding individuals involved in the work study program, guards, the Executive Director, Assistant Executive Director, administrative sec- retary, day care head teacher, head start head teacher, group worker head worker, after school program social workers, neighborhood devel- opment head worker, Pathways unit director, Eastwood unit director, Lakeside unit director, Health Center Coordinator, Thrift Shop Manag- er, psychiatric consultant and supervisors as de- fined in the Act. 1020 LUTHERAN WELFARE SERVICES OF ILLINOIS 2. The certifications On April 9, 1975, and on May 21, 1975, in units (a) and (b). respectively a majority of the employees of Respondents in said units, in secret-ballot elections conducted under the supervision of the Regional Di- rector for Region 13, designated the Union as their representative for the purpose of collective bargain- ing with Respondents. The Union was certified as the collective-bargaining representative of the em- ployees in said units on April 21, 1975, with respect to LWSI, and on May 30, 1975, with respect to UCCS, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Requests To Bargain and Respondents' Refusal Commencing on or about December 15, 1975, and at all times thereafter, the Union has requested Re- spondents to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described units. Commenc- ing on or about December 15, 1975, and continuing at all times thereafter to date, Respondents have re- fused, and continue to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said units. Accordingly, we find that Respondents have, since December 15, 1975, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid appropriate units, and that, by such refusal, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (i) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with their opera- tions described in section 1, above, have a close, inti- mate, 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 Respondents have engaged in and are engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act, we shall order that they cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate units. and, if understandings are reached, embody such un- derstandings in signed agreements. In order to insure that the employees in the appro- priate units 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 Respondents com- mence to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate units. 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 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964): Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. LWSI and UCCS are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local No. 372, Service Employees International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. The units appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act are as follows: 3. (a) All full-time and regular part-time employ- ees of LWSI at the day care sites of Cabrini-Holy Family, Unity, Winthrop, and Uptown in Chicago, Illinois: but excluding all guards and supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. (b) All child care employees including teachers, teacher aides, social workers, social service aides, group workers aides, food service employees includ- ing cooks, clerical employees including receptionists, maintenance employees and transportation employ- ees employed by UCCS at its Christopher House fa- cilities located at Greenview Avenue, Eastwood Ave- nue and Lakeside Place, Chicago, Illinois; but excluding individuals involved in the work study pro- gram, guards, the Executive Director, Assistant Ex- ecutive Director, administrative secretary, day care head teacher, head start head teacher, group worker head worker, after school program social workers, neighborhood development head worker, Pathways unit director, Eastwood unit director, Lakeside unit director, Health Center Coordinator, Thrift Shop Manager, psychiatric consultant and supervisors as defined in the Act. 1021 DECISIONS OF NATIONAL LABOR RELATIONS BOARI) 4. Since April 21, 1975, and May 30, 1975, for LWSI and UCCS, respectively, the above-named la- bor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate units for the purpose ol collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 15, 1975, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondents in the appropriate units, Respon- dents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dents have interfered with, restrained, and coerced, and are interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby have en- gaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(l) 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 Re- lations Board hereby orders that the Respondents, Lutheran Welfare Services of Illinois, and United Christian Community Services, Chicago, Illinois. their 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 con- ditions of employment with Local No. 372, Service Employees International Union, AFL-CIO, as the exclusive bargaining representative of their employ- ees in the following appropriate units: (a) All full-time and regular part-time em- ployees of LWSI at the day care sites of Cabrini- Holy Family, Unity, Winthrop, and Uptown in Chicago, Illinois; but excluding all guards and supervisors as defined in the Act. (b) All child care employees including teach- ers, teacher aides, social workers, social service aides, group workers, group workers aides, food service employees including cooks, clerical em- ployees including receptionists, maintenance employees and transportation employees em- ployed by UCCS at its Christopher House facil- ities located at Greenview Avenue, Eastwood Avenue and Lakeside Place, Chicago, Illinois: but excluding individuals involved in the work study program, guards, the Executive Director, Assistant Executive Director, administrative sec- retary, day care head teacher, head start head teacher, group worker head worker, after school program social workers, neighborhood devel- opment head worker, Pathways unit director, Eastwood unit director, Lakeside unit director, Health Center Coordinator, Thrift Shop Manag- er, psychiatric consultant and supervisors as de- fined in the Act. (b) In any like or realted 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 units with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached embody such understanding in a signed agreement. (b) Post at their offices and day care centers in Chicago, Illinois, copies of the attached notice marked "Appendix." " Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondents' repre- sentative, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. '' 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the 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 WIL. NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local No. 372, Service Employees International Union, AFL-CIO, as the exclusive representa- 1022 LUTHERAN WELFARE SERVICES OF ILLINOIS tive of the employees in the bargaining units de- scribed 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining units are: (a) All full-time and regular part-time em- ployees of LWSI at the day care sites of Ca- brini-Holy Family, Unity, Winthrop, and Up- town in Chicago, Illinois; but excluding all guards and supervisors as defined in the Act. (b) All child care employees including teachers, teacher aides, social workers, social service aides, group workers, group workers aides, food service employees including cooks, clerical employees including receptionists, maintenance employees and transportation employees employed by UCCS at its Christo- pher House faciliites located at Greenview Avenue, Eastwood Avenue and Lakeside Place, Chicago, Illinois; but excluding indi- viduals involved in the work study program, guards, the Executive Director. Assistant Ex- ecutive Director, administrative secretary, day care head teacher, head start head teacher, group worker head worker, after school pro- gram social workers, neighborhood devel- opment head worker, Pathways unit director, Eastwood unit director, Lakeside unit direc- tor, Health Center Coordinator, Thrift Shop Manager, psychiatric consultant and supervis- ors as defined in the Act. LUTHERAN WELFARE SERVICES OF ILLINOIS 1023