Children's Baptist Home of Southern California

CHILDREN'S BAPTIST HOME 303 Children's Baptist Home of Southern California and American Federation of State , County and Munici- pal Employees, AFL-CIO, Council 36. Case 31-CA-4402 December 5, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENEL.LO This case comes before the Board on the General Counsel's request for review of Administrative Law Judge James T. Barker's Order granting Respondent's motion to dismiss the unfair labor practice complaint in its entirety. The facts of the case, stated briefly, are as follows: Background On November 2, 1973, the Union, which is the Charging Party herein, filed a petition in related Case 31-RC-2618. Following a hearing held on December 3, 1973, to determine whether the Board should assert its discretionary jurisdiction over the Employer, the Acting Regional Director for Region 31, on December 28, 1973, issued a Decision and Direction of Election in which he concluded that the Employer's operations were sufficiently similar to those involved in Jewish Orphan's Home' and Children's Village' to warrant assertion of the Board's discretionary jurisdiction. No request for review was filed by Respondent. An election by secret ballot was thereafter conducted on January 23, 1974. The tally of ballots showed that the Union received a majority of the votes cast in the election in voting groups A and B, but did not receive a majority in voting group C. On January 30, 1974, the Employer filed a number of timely objections to the election and, following an investigation, the Regional Directof, on April 9; 1974, issued and served on the parties his report on objec- tions, in which he recommended that the Board over- rule two of the Employer's objections and send the third to hearing. On April 22, 1974, the Employer filed exceptions to the Regional Director's report and sup- porting brief. In the meantime, on April 16, 1974, the Union filed the instant unfair labor practice charges alleging, inter alia, that Respondent had unlawfully discharged 13 of its employees on April 9, 1974. On May 21, 1974, the Regional Director issued a complaint and notice of I Jewish Orphan's Home ofSouthern California a/k/a Vista de Mar Child Care Service, 191 NLRB 32 (1971). 2 The Children's Village, Inc., 186 NLRB 953 (1970). hearing on the basis of his investigation of the unfair labor practice charges. Thereafter, on May 24, 1974, the Board issued its decision in Ming Quong Children's Center, 210 NLRB 899 (1974), expressly overruling its prior decisions in Jewish Orphan's Home and Children's Village, supra, and announcing that, in the area of resident care cen- ters for emotionally disturbed children, it would no longer assert its jurisdiction "over this type ofnonprofit institution whose activities are noncommercial in na- ture and are intimately connected with the charitable purposes of the institution." Subsequently, on June 17, 1974, the Respondent filed with the Division of Ad- ministrative Law Judges a motion to dismiss the unfair labor practice complaint, contending that the Board's new position in Ming Quong was controlling in the present case, and that the Board should therefore de- cline to assert jurisdiction here.' On July 2, 1974, pre- siding West Coast Administrative Law Judge James T. Barker issued an order granting the Employer's motion to dismiss and, on July 12, 1974, the General Counsel filed with the Board a request for review of that order, in which the Union joined. Respondent thereafter filed a brief in opposition to the request for review. 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. The Board has duly considered the Employer's mo- tion to dismiss, the Administrative Law Judge's order granting said motion, the General Counsel's request for review, and Respondent's opposition thereto, and has decided to grant the request for review and to remand the proceeding for a hearing on the merits.4 In his request for review of the Administrative Law Judge's ruling, the General Counsel argues that: the Board, by its Regional Director's decision asserting jurisdiction over the Employer, assured the employees that their union activities , would be protected; the Union also, gave similar assurance to the employees on the basis of the Regional Director's decision; the em- ployees, acting in reliance on such assurances , engaged in union activities and, in the election conducted on January 23, 1974, selected the Union as their bargain- ing representative; the Employer, on April 9, 1974, discharged 13 of these employees allegedly because of their union activities; and that, therefore, it would be 3 Additionally, the Employer filed with the Board amended exceptions to the report on objections, and a motion for reconsideration, in Case 31-RC-2618, contending that the petition must be dismissed on the basis of the Board's ruling in Ming Quong. That motion is considered and denied in the companion case, Children's Baptist Home ofSouthern Californi4 215 NLRB No. 45, issued this day. ' Respondent's request for permission to argue orally before the Board is hereby denied because, in our view, the contentions of the parties are ade- quately set forth in General Counsel's request for review and in Respon- dent's brief in opposition thereto. 215 NLRB No. 44 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unconscionable for the Board now to turn its back on these employees by declining to afford them the protec- tions of the Act which the Board led them to believe they enjoyed. We find merit in this argument. Our decision to assert jurisdiction here is premised on the particular facts set forth above, and is com- pelled, we believe, by two considerations essential to the effective and equitable enforcement of the Act. The first consideration for asserting jurisdiction is more fully discussed in our companion opinion issued this day involving the representation case, 215 NLRB No. 45 (31-RC-2618). There, we decided to affirm the Re- gional Director's assertion of jurisdiction because, inter aliq the Employer had failed to file a timely request for review as required by Section 102.67 of the Board's Rules and Regulations , Series 8, as amended. The second consideration which compels us to assert the Board's jurisdiction over the Employer is the need to protect the statutory rights of employees who al- legedly engaged, to their detriment, in protected con- certed activities in reliance on the Regional Director's decision asserting jurisdiction over the Employer in the representation proceeding. The Union clearly an- nounced to the employees that their activities on behalf of the Union would be protected by the Board. Thus, for example, the Petitioner, by a leaflet dated January 10, 1974, notified the employees that "On December 28, 1973, the NLRB rendered a decision in the matter of Children's Baptist Home. . . the result [of which] is that the NLRB has taken jurisdiction and has ordered an election to be conducted at Children's Baptist Home among the employees as to whether or not they desire to have AFSCME represent them;" and, by a leaflet dated January 21, 1974, added, "Several of you were threatened with termination or layoff because the man- agement thought you participated in showing your sympathies for your fellow-employees-Federal law forbids the management of Children's Baptist to engage in scare tactics or threatening [sic] you in any manner in an attempt to keep you from voting for the Union." As stated, a majority of the unit employees thereafter voted for the Petitioner and, on April 9, 1974, the Employer discharged 13 of them allegedly for their prounion activities. Therefore, for the Board to with- draw its jurisdiction at this late date would have the unfortunate consequence of leaving the employees un- protected by the Act from alleged Employer retaliation for engaging in what they justifiably believed were pro- tected concerted activities. In Eugen Pedersen v. N.L.R.B.,5 the Court of Ap- peals for the Second Circuit reversed the Board's dis- missal of an 8(a)(4) complaint. There, an employee was discharged after he had given testimony adverse to his employer's interests, pursuant to a Board subpena, in 5 234 F.2d 417 ( 1956), reversing and remanding 110 NLRB 1305. a Board proceeding . After the Trial Examiner had found the discharge violative of Section 8(a)(4) of the Act, but before the Board's review on the merits, the Board tightened its jurisdictional standards , which ex- cluded coverage of the employer. On the basis of these stricter jurisdictional standards , the Board dismissed the 8(a)(4) complaint . The circuit court of appeals, in reversing the Board's dismissal and remanding the matter, quoted from Board Member Murdock's dis- sent: Having placed [the employee] in the position of opposing the interests of his employer, the Board cannot in good conscience leave him to the ungen- tle "mercy" of that employer, merely because in the interim 'the Board has changed its jurisdic- tional policies so as to exclude the Respondent. Respondent contends that Pedersen is distinguisha- ble because there, unlike here, a Trial Examiner's Deci- sion had already issued, finding an 8(a)(4) violation, before the Board altered its jurisdictional standards, and, more significantly, because that case involved an overriding policy "to protect the efficacy of the Board's processes by protecting employees who testify in Board proceedings from retaliation by an employer." More in point, the Respondent argues, is Robert Scrivener,' d/b/a AA Electric Co., where the Board asserted juris- diction over the employer with respect to an alleged 8(a)(4) violation, but declined to assert jurisdiction with respect to the alleged 8(a)(1), (3), and (5) viola- tions of the complaint on the grounds that the employer did not meet the Board's jurisdictional standards. While we agree that in the Scrivener case, the Board distinguished between alleged 8(a)(4) violations and vi- olations of other sections of the Act, we question the validity of that distinction. For, once the Board assures employees that their union or concerted activities are protected by the Act, we feel it is highly inequitable to the employees who rely on such assurance to their alleged detriment, thereafter to decline to protect them from an employer's alleged retaliatory actions.' 6 177 NLRB 504 (1969). 7 See also John Almeida, Jr., d/b/a Almeida Bus Service, and Almeida Bus Lines, Inc., 99 NLRB 498 (1952), where, after being assured by a field examiner that the Board would not assert jurisdiction in a representation case, the employer denied reinstatement to unfair labor practice strikers. The Board refused to apply subsequently relaxed jurisdictional standards to the Employer's actions retroactively, stating, 99 NLRB at 501, a "broad principle" of reluctance to impose statutory sanctions against a party for conduct committed "after advice and notice from the Board that its conduct would not be actionable ...... Here, the argument against retroactively applying changed jurisdictional standards is even stronger, first, because here, the Board's "advice and notice" relied on was not a Field Examiner's informal statement but the Acting Regional Director's official Direction of Election; and second, because the Act's ultimate purpose is not to protect employers from findings against them of unfair labor practices, but to pro- tect employees from retaliatory actions of employers for engaging in pro- tected, concerted activities. CHILDREN'S BAPTIST HOME Therefore, to the extent that our decision here conflicts with Scrivener, the latter is reversed! Accordingly, we shall assert jurisdiction over the Employer, vacate the Administrative Law Judge's or- der granting motion to dismiss, and remand this case to the Regional Director for the purpose of scheduling a hearing on the merits of the complaint before a duly designated Administrative Law Judge, and for the pur- pose of giving due notice of such hearing to the parties. ORDER It is hereby ordered that the General Counsel's re- quest for review of the Administrative Law Judge's 305 order granting motion to dismiss be, and it hereby is, granted. IT IS FURTHER ORDERED that a hearing be conducted before a duly designated Administrative Law Judge for the purpose of litigating the issues raised by the com- plaint, in accordance with Sections 102.34 through 102.47, inclusive, of the National Labor Relations 'Board's Rules and Regulations, Series 8 , as amended. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Re- gion 31 for the purpose of arranging such hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. 8 Member Fanning agrees that jurisdiction should be asserted for the reasons stated here. However, he would rely additionally on the reasons set forth in his Ming Quong dissent.