J. Arthur Trudeau Center

J. ARTHUR TRUDEAU CENTER The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center and Trudeau Center Employees Union, AFT. Case 1-CA-12943 October 31, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge duly filed on March 31, 1977, by Trudeau Center Employees Union, AFT, herein called the Union, and duly served on The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center, herein called the Respon- dent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint and notice of hearing on April 21, 1977, 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 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 March 3, 1977, following a Board election in Case I-RC- 14265, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate; 1 and that, commencing on or about March 24, 1977, and at all times thereafter, Respondent has refused, and con- tinues 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 May 3, 1977, Respondent filed its answer admitting in part and denying in part, the allegations in the complaint. On May 12, 1977, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment which asserts that all issues raised by Respondent were or could have been litigated in the representation case and may not be relitigated here. Subsequently, on June 3, 1977, 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. On July 7, 1977, Respondent filed a I Official notice is taken of the record in the representation proceeding, Case I-RC-14265. as the term "record" is defined in Sees. 102.68 and 102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967); 233 NLRB No. 33 memorandum in response to Notice To Show Cause why General Counsel's Motion for Summary Judg- ment should not be granted. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority 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 response to the Notice To Show Cause Respondent contends that (1) the Board is without jurisdiction because Respondent is not a "health care institution" within the meaning of Section 2(14) of the National Labor Relations Act, as amended, and (2) in any event, a hearing is necessary to establish legal jurisdiction because (a) there was no showing in the prior representation proceeding that Respon- dent's operations "affect commerce" within the meaning of Section 2(7) of the Act, and (b) the Board has made no finding with respect to the requisite $50,000 "inflow-outflow" test. In the representation proceeding the Board, follow- ing its decision in The Rhode Island Catholic Orphan Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344 (1976), asserted jurisdiction over Respondent without regard to whether it is a health care institution.2 Respondent has presented no cogent basis for us to reconsider this ruling at this time. The representation proceeding also disposed of Respondent's claim with respect to legal jurisdiction. At the hearing on the representation petition, Respondent conceded that it had an annual budget of approximately $617,000, that its expenditures "may fall within a 10 percent category of dollars being expended in interstate commerce for supplies, materials and other things . ." and that, Based upon those allegations, it is the feeling of the Employer that the Employer is engaged in an activity covered by the provision of the National Labor Relations Act, and that the National Labor Relations Board probably has jurisdiction. In addition, the record also shows that, during the previous years, Respondent received from the city of Warwick, Rhode Island, the sum of $64,539 under the Comprehensive Employment and Training Act3 (C.E.T.A.). These funds are received by the city of Warwick directly from the Federal Government. The Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA, as amended. 2 227 NLRB 1439(1977). 3 Comprehensive Employment and Training Act of 1973, P.L. 93-203, 87 Stat. 839. 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that Respondent received such federally funded moneys is sufficient, standing alone, to establish statutory jurisdiction over Respondent's operations.4 Inasmuch as Respondent raises no other conten- tion in response to the Notice To Show Cause, and it is clear that the representation case record establishes that the Board has jurisdiction over Respondent, we shall grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a not-for-profit Rhode Island corporation with its principal office and place of business at Warwick, Rhode Island, where it is engaged in the operation of a rehabilitation and training center for retarded children and adults. For the calendar year 1976, Respondent had a projected gross revenue of $617,000, expended approximately $61,700 to pur- chase supplies and materials from sources in inter- state commerce, and received and expended as part of its operating budget the sum of $64,539 from the federally funded C.E.T.A. program. 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. 11. THE LABOR ORGANIZATION INVOLVED Trudeau Center Employees Union, AFT, 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 constitute a unit appropriate for collective-bargain- ing purposes within the meaning of Section 9(b) of the Act: All employees including teacher aides, workshop supervisors, bus drivers, truckdrivers, janitors, special education teachers, the nurse, the physical therapists, the social workers, the assistant work- shop director, and the assistant recreation direc- 4 Catholic Social Services, 225 NLR B 288 (1976), Eavt Oakland Communi- ty HealthAlliance, 218 NLRB 1270, 1271 (1975). tor employed by Respondent, but excluding office clerical employees, consultants, Group Home employees, C.E.T.A. employees, guards and supervisors as defined in the Act. 2. The certification On February 23, 1977, 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 1, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on March 3, 1977, 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 March 16, 1977, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about March 24, 1977, 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 representa- tive for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since March 24, 1977, 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, Respon- dent 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 Respondent set forth in section III, above, occurring in connection with its opera- tions 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 com- merce. 152 J. ARTHUR TRUDEAU CENTER 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, 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 certifica- tion as beginning on the date Respondent com- mences 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 (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); Burnett 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 1. The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. T rudeau Center Employees Union, AFT, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees including teacher aides, work- shop supervisors, bus drivers, truckdrivers, janitors, special education teachers, the nurse, the physical therapists, the social workers, the assistant workshop director, and the assistant recreation director em- ployed by Respondent, but excluding office clerical employees, consultants, Group Home employees, C.E.T.A. 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 March 3, 1977, 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 March 24, 1977, 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(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in 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 the Respondent, The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center, Warwick, Rhode Island, 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 Trudeau Center Employees Union, AFT, as the exclusive bargaining representative of its employees in the following appropriate unit: All employees including teacher aides, workshop supervisors, bus drivers, truckdrivers, janitors, special education teachers, the nurse, the physical therapists, the social workers, the assistant work- shop director, and the assistant recreation direc- tor employed by Respondent, but excluding office clerical employees, consultants, Group Home employees, C.E.T.A. 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 under- standing is reached, embody such understanding in a signed agreement. 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its facility at Warwick, Rhode Island, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 1, 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURPHY, dissenting: For the reasons set forth in my dissenting opinion in The Kent County Association for Retarded Citizens d/b/a J. Arthur Trudeau Center, 227 NLRB 1439 (1977), I would not assert jurisdiction over Respon- dent's operations. Accordingly, I dissent from my colleagues' conclusion that Respondent has violated Section 8(a)(5) and (1) of the Act. $ 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 WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Tru- deau Center Employees Union, AFT, 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 representa- tive 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 agree- ment. The bargaining unit is: All employees including teacher aides, work- shop supervisors, bus drivers, truckdrivers, janitors, special education teachers, the nurse, the physical therapists, the social workers, the assistant workshop director, and the assistant recreation director, but excluding office clerical employees, consul- tants, group home employees, C.E.T.A. employees, guards and supervisors as de- fined in the Act. THE KENT COUNTY ASSOCIATION FOR RETARDED CITIZENS D/B/A J. ARTHUR TRUDEAU CENTER 154