Children's Baptist. Home of Southern California

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Children's Baptist .Home of Southern California and American Federation of State, County, and Munici- pal Employees, AFL-CIO, Council 36. Case 31- CA-5994 September 20, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO Upon a charge filed on March 23, 1976, by Ameri- can Federation of State, County, and Municipal Em- ployees, AFL-CIO, Council 36, herein called the Union, and duly served on Children's Baptist Home of Southern California, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 31, issued a complaint and notice of hearing on April 13, 1976, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair la- bor 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. Cop- ies 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 November 7, 1975, following a Board election in Case 31-RC-2618 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about January 30, 1976, and at all times thereafter, Respondent has refused, and continues 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 7, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On June 7, 1976, counsel for the General Counsel filed directly with the Board a motion for summary judgment. On June 11, 1976, Respondent filed a mo- tion for summary judgment and statement in opposi- tion to General Counsel's motion for summary judg- ment. Subsequently, on June 18, 1976, the Board issued an order transferring the proceeding to the Board and a notice to show cause why the General Counsel's and/or the Respondent's motions for sum- mary judgment should not be granted. On June 29, 1976, counsel for the General Counsel filed an oppo- sition to Respondent's motion. Thereafter by letter dated July 1, 1976, Respondent filed a supplement to its motion and statement in opposition, to which counsel for the General Counsel responded by letter dated July 2, 1976. 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: Rulings on the Motions for Summary Judgment Review of the record, including the representation proceedings in Case 31-RC-2618, establishes that, after a hearing at which jurisdictional issues were liti- gated, the Acting Regional Director issued a Deci- sion and Direction of Election on December 28, 1973, finding that Respondent's operations satisfied the Board's existing jurisdictional standards and were sufficiently similar to those of the employers in Jewish Orphan's Home 2 and Children's Village 3 to warrant the assertion of jurisdiction over Respon- dent. Respondent did not file a request for review. On January 23, 1974, elections were held in the three stipulated units. The Union won the election in a unit of all employees involved herein.4 Respondent filed timely objections to the election alleging, inter alia, certain material misrepresentations. After an in- vestigation, the Regional Director issued his Report on Objections and Order Directing Hearing, recom- mending that a hearing be held on one of Respon- dent's material misrepresentation objections and that the remaining objections be overruled. Respondent filed with the Board timely exceptions to the report and a supporting brief, in which it ba- sically reiterated its objections. Thereafter, on June 17, 1974, Respondent amended its exceptions and filed a motion for reconsideration of the Acting Re- gional Director's decision to assert jurisdiction in light of the Board's May 24, 1974, decision in Ming Quong5 which explicitly overruled the precedents in Jewish Orphan's Home and Children's Village. On December 5, 1974, the Board issued its Decision and i Official notice is taken of the record in the representation proceeding, Case 31-RC-2618, 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 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), Follett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (C A. 7, 1968); Sec. 9(d) of the NLRA, as amended 2 Jewish Orphan's Home of Southern California a/k/a Vista del Mar Child Care Service, 191 NLRB 32 (1971) 3 The- Children's Village, Inc., 186 NLRB 953 (1970) 4 The social workers voted for inclusion in the unit while the office cleri- cals voted against representation by the Union and against inclusion in the unit 5 Ming Quong Children's Center, 210 NLRB 899 (1974). 226 NLRB No. 4 CHILDREN'S BAPTIST HOME OF SO . CALIF. Order Directing Hearing,' asserting jurisdiction over Respondent based on (1) Respondent's failure to file a timely request for review of the Decision and Di- rection of Election and (2) the need to protect the statutory rights of Respondent's employees, who, as alleged in the companion unfair labor practice case,7 engaged, to their detriment, in protected concerted activities in reliance upon the assertion of jurisdic- tion. After the hearing on objections, at which Respon- dent again raised the issue of jurisdiction, Respon- dent filed with the Hearing Officer a brief arguing that the settlement of the companion unfair labor practice case had removed the rationale for asserting jurisdiction in the representation proceedings. In his Report and Recommendation, issued April 3, 1975, the Hearing Officer recommended that the objec- tions be overruled and the Union certified. Respon- dent filed timely exceptions to the Report and Rec- ommendations and to the failure of the Hearing Officer to deal with the jurisdictional issue, and in support thereof incorporated its posthearing brief and its argument against the assertion of jurisdiction. On November 7, 1975, the Board issued its Decision and Certifications, in which it adopted the Hearing Officer's findings and recommendations and specifi- cally denied Respondent's request that it reverse its prior decision and withdraw its assertion of jurisdic- tion because Respondent has raised no new issues of fact or law in claiming that the prior decision was incorrect at the time of its issuance. The Board fur- ther found that, in any event, Respondent is a "health care institution" within the meaning of Sec- tion 2(14) of the Act. Accordingly, the Board certi- fied the Union. In its submissions in this proceeding, Respondent, in substance, contends that the Board lacks discre- tionary jurisdiction over Respondent under the Ming Quong;precedent. On the other hand, counsel for the General Counsel contends in substance that (1) the jurisdictional issues raised by Respondent herein were decided by the Board in the underlying repre- sentation case and may not be relitigated and (2) the basis of Respondent's motion for summary judgment and its' opposition to the General Counsel's motion is eliminated by the Board's decision in St. Aloysius Home,& expressly overruling Ming Quong. We agree with the General Counsel. With respect to Respondent's contention that the Board" does not have discretionary jurisdiction over it, it is apparent that Respondent seeks to relitigate 6 215 NLRB 306 (1974) A hearing was also directed on a second misrep- resentation objections Children's Baptist Home of Southern California, 215 NLRB 303 (1974). The Rhode Island Catholic Orpahn Asylum, a /k/a St Aloysius Home, 224 NLRB 134x4, (1976) 7 the jurisdictional issues considered and decided by the Board in the underlying representation proceed- ings. It is well settled that in the absence of newly discovered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been liti- gated in a prior representation proceeding. All issues, raised by the Respondent in this pro- ceeding were or could have been litigated in the 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 find that Respondent has not raised any issue which is properly litigable in this unfair labor practice pro- ceeding.10 Further, we agree with the General Coun- sel that the standard established in St. Aloysius Home for specialized institutions such as Respondent has been met by Respondent's admitted annual gross revenues in excess of $250,000 and annual out-of- state purchases in excess of $50,000 so as to warrant the exercise of the Board's jurisdiction. We shall, ac- cordingly, deny Respondent's motion and grant the General Counsel's Motion for Summary Judgment." On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now, and has been at all times ma- terial herein, a nonprofit institution providing resi- 9 See Pittsburgh Plate Glass Co v. N L R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Sees 102.67(f) and 102 69(c) 10 In its answer Respondent denies the allegations of the complaint with respect to (1) its status as an employer in commerce within the meaning of Sec 2(6) and (7) of the Act, (2) the election results and certification,-and (3) the request and refusal to bargain. Respondent's employer status and the election results and certification were established in the underlying repre- sentation proceeding and may not be rehtigated. As to the complaint allega- tions of a request and refusal to bargain, attached to the General Counsel's Motion for Summary Judgment are a letter of request by the Union dated November 19, 1975, and a letter from Respondent dated January 30, 1976, refusing to recognize the Union As Respondent offers nothing to contro- vert these letters, the allegations concerning a request and refusal to bargain are found to be true Thrift Drug, a Division of J C Penney Company, Inc, 215 NLRB 259 (1974), and cases cited therein 11 In view of our determinations herein as to jurisdiction and as to the Respondent's status as an employer under Sec 2(6) and (7) of the Act, we find it unnecessary to rule upon its contentions that it is not a health care institution under Sec. 2(14) of the Act and that due process requires, that a hearing be held thereon Member Penello would deny Respondent's motion and grant the General Counsel's Motion for Summary Judgment solely on the ground that Re- spondent has not raised any issue which is properly litigable in this proceed- ing. As explained in the dissenting opinion in St Aloysius Home, Member Penello continues to adhere to Ming Quong and would not assert jurisdic- tion over charitable, nonprofit, or noncommercial organizations 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dential care for emotionally disturbed children in In- glewood, California. Respondent, in the course and conduct of its business operations, annually purchas- es and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of California. Respondent, in the course and conduct of its business operations, annually derives gross revenues in excess of $250,000. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED American Federation of State, County, and Mu- nicipal Employees, AFL-CIO, Council 36, is a labor organization within the meaning of Section 2(5) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 19, 1975, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about January 30, 1976, and continuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and,bargain with the Union as the exclusive representative for collec- tive bargaining of all employees in said unit. Accordingly, we find that Respondent has, since January 30, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appropri- ate 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. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time employees of The Employer at its Inglewood, California, facility, including social workers, child care workers, clinic attendants, drivers, laundry and maintenance staff, night watchmen, cooks, dish- washers, recreation leaders, teaching assistants, and ceramic instructors; excluding all other em- ployees, guards and supervisors within the meaning of the Act. 2. The certification On January 23, 1974, 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 31 , designated the Union as their representative for the purpose of collective bargain- ing with Respondent . The Union was certified as the collective-bargaining representative of the employees in said unit on November 7, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) 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, 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 Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 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 commenc- es to bargain in good faith with the, Union as the recognized bargaining representative in the appropri- ate 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); Bur- CHILDREN'S BAPTIST HOME OF SO. CALIF. 9 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 1. Children's Baptist Home of Southern California is an employer engaged in commerce, within the meaning of Section 2(6) and (7) of the Act. 2. American Federation of State, County, and Municipal Employees, AFL-CIO, Council- 36, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time employees of the Employer at its Inglewood, California, facility, including social workers, child care ,workers, clinic attendants, drivers, laundry and maintenance staff, night watchmen, cooks, dishwashers, recreation lead- ers, teaching assistants, and ceramic instructors; ex- cluding all other employees, guards, and supervisors within the meaning of the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since November 7, 1975, the above-named la- bor 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 January 30, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged 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 Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the mean- ing 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. Children's Baptist Home of Southern California, In- glewood, 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 con- ditions of employment with American Federation of State, County, and Municipal Employees, AFL-CIO, Council 36, as the exclusive bargaining representa- tive of its employees in the following appropriate unit: All full-time and regular part-time employees of the Employer at its Inglewood, California, facility, including social workers, child care workers, clinic attendants, drivers, laundry and maintenance staff, night watchmen, cooks, dish- washers, recreation leaders, teaching assistants, and ceramic instructors; excluding all other em- ployees, guards, and supervisors within the meaning of 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. (b) Post at its Inglewood, California, facility cop- ies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Re- gional Director for Region 31, after being duly signed by Respondent's representative, shall be post- ed 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 31, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 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, 12 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 " 10 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 American Federation of State, County, and Mu- nicipal Employees, AFL-CIO, Council 36, 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 Sectiow 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 unit is: All full-time and regular part-time employ- ees of the Employer at its Inglewood, Califor- nia, facility, including social workers, child care workers, clinic attendants, drivers, laun- dry and maintenance staff, night watchmen, cooks, dishwashers, recreation leaders, teach- ing assistants, and ceramic instructors; ex- cluding all other employees, guards, and su- pervisors within the meaning of the Act. CHILDREN'S BAPTIST HOME OF SOUTHERN CALIFORNIA