Children's Baptist Home of Southern California

I 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Children's Baptist Home of Southern California and American Federation of State, County & Municipal Employees, AFL-CIO, Council 36, Petitioner. Case 31-RC-2618 December 5, 1974 DECISION AND ORDER DIRECTING HEARING BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO This case comes before the Board on exceptions and amended exceptions to the Regional Director's Report on Objections, filed by the Employer on April 22 and June 18, 1974, respectively, and on a motion' for recon- sideration, filed by the Employer on June 20, 1974. The exceptions contend that the Regional Director erred in failing to sustain the Employer's objections and set aside the election, and the amended exceptions and the Motion for Reconsideration contest the Acting Re- gional Director's decision to assert jurisdiction over the Employer and direct the. election in the first place. The procedural facts of the case, briefly, are as follows: On November 2, 1973, the Petitioner filed a petition in this case, and on November 29, 1973, the Intervenor' filed a motion to intervene. On December 3, 1973, a hearing was held limited to the question of whether the Board should assert its discretionary juris- diction over the Employer; the Employer strongly urged that under the Board's then-existing case law, it should not. The Employer's main argument was that the Board's decisions to assert jurisdiction over the employers in Jewish Orphan's Home of Southern Cali- fornia a/k/a Vista Del Mar Child Care Service, 191 NLRB 32 (1971), and The Children's Village, Inc., 186 NLRB 953 (1970), were inapplicable here-first, be- cause the Board there explicitly declined to set perma- nent jurisdictional standards for child care centers, and second, because the Employer's volume of interstate business is significantly less than that of the employers in those cases. On December 28, 1973, the Acting Regional Direc- tor for Region 31 issued a Decision and Direction of Election specifically concluding, after a thorough dis- cussion of the evidence adduced at the hearing, that the Employer's operations here were sufficiently similar to those of the employers in Jewish Orphan's Home and Children's Village to warrant assertion of the Board's jurisdiction., The Employer did not request review of that Decision. I The Intervenor is Service & Hospital Workers, Local 399, AFL-CIO. 215 NLRB No. 45 Thereafter, an election by secret ballot was con- ducted on January 23, 1974, among the employees in the units found appropriate. The tally of ballots showed that of the approximately 58 eligible voters in voting groups A and B,2 51 valid ballots were cast, of which 34 were for the Petitioner, 1 was for the Intervenor, and 15 were against representation by either labor organiza- tion; and that, of the approximately 8 eligible voters in voting group C, 6 valid ballots were cast, of which 1 was for, and 5 were against, the Petitioner. On January 30, 1974, the Employer filed a number of timely objections to conduct affecting the results of the election.' Pursuant to the Board's Rules and Regulations, Ser- ies, 8, as amended, the Regional Director conducted an investigation of the Employer's objections and, on April 9, 1974, issued and served on the parties a report on objections and order directing hearing. In that re- port, the Regional Director recommended that the Board overrule Objections l,c and 1, d(2) and order a hearing for the purpose of obtaining evidence bearing on the issues raised by Objection 1, d(1). Thereafter, on April 22, 1974, the Employer filed exceptions to the Regional Director's report and a brief in support thereof. In the meantime, on April 16, 1974, the Petitioner, also called AFSCME, filed with the Regional Director unfair labor practice charges alleging that the Em- ployer had committed a series of unfair labor practices including the discharge of 13 employees on April 9, 1974, allegedly because they had engaged in protected concerted activities during the election campaign. On May 21, 1974, the Regional Director issued a com- plaint based on the unfair labor practice charges filed against the Employer.4 While the matter was pending before the Board on the Employer's exceptions to the Regional Director's report, the Board (Member Fanning dissenting), on May 24, 1974, issued its decision in Ming Quong Chil- dren's Center, 210 NLRB 899, explicitly overruling its prior decisions in Jewish Orphan's Home and Chil- 2 The three voting groups were: (A) all child care workers, clinic attend- ants, drivers, laundry and maintenance staff, night watchmen, cooks, dish- washers, recreation leaders, teaching assistants, and ceramic instructors; (B) all social workers; and (C) all office clerical workers. The employees in group B voted to be included with those in group A. The Intervenor did not participate in group C's voting. 3 Objection l,c alleged that the Petitioner had made a material misre- presentation by implying that it never required employees to obtain union membership; Objection 1,d(1) alleged that the Petitioner had made a material misrepresentation by claiming to have had a 3-year collective- bargaining contract with Jewish Orphan's Home; and Objection l,d(2) al- leged that the Petitioner had made a material misrepresentation by claiming to have won certain wage increases in its current negotiations for a new collective-bargaining contract with Jewish Orphan's Home. The remaining objections-l,a; l,b; and 2-were withdrawn by the Employer with the Regional Director's approval. 4 The unfair labor practice complaint is the subject of Case 31-CA-4402, a companion case to the present one. CHILDREN'S BAPTIST HOME dren's Village, supra and announcing that, in the area of resident care centers for emotionally disturbed chil- dren, it would no longer assert its jurisdiction "over this type of nonprofit institution whose activities are noncommercial in nature and are intimately connected with the charitable purposes of the institution.' Some time thereafter, on June 18 and 20, 1974, the Employer filed with the Board amended exceptions to the Re- gional Director's Report on Objections, and a motion for reconsideration, contending that the Board's new position in Ming Quong was controlling in the present case, and that the Board, therefore, should decline to assert jurisdiction here.' 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 ob- jections, the Regional Director's Report on Objections, and the Employer's exceptions and brief, amended ex- ceptions, and motion for reconsideration, and has con- cluded that jurisdiction should be asserted over the Employer. The Board has furthermore concluded that the issues raised by the Employer's Objections 1, d(1) and (2)7 can best be resolved by a hearing. Our decision to assert the Board's discretionary ju- risdiction here is premised on the particular procedural facts set forth above, and is compelled, we believe, by two considerations essential to the effective and equita- ble enforcement of the Act. First, the Employer failed to file a timely request for review by the Board of the Regional Director's Decision and Direction of Election as required by Section 102.67 of the Board's Rules and Regulations. Indeed, the Employer's request for review of the Region's initial assertion of jurisdiction was filed almost half a year after issuance of the Direction of Election-clearly beyond the time limits imposed upon such requests for review by Section 102.67 • of the Board's Rules and Regulations, Series 8, as amended. Nor did the Employer, in its exceptions to the Regional Director's report on objections, filed on April 22,.a 1974, raise the issue of jurisdiction. In these circumstances, to suspend the ordinary procedural requirements of the Board's Rules and 5 In the nature of its services and its impact on commerce, the Employer here would appear to be comparable to that in Ming Quong. However, in view of our disposition of the case, infra we deem it unnecessary to decide whether Ming Quong would be controlling in circumstances not present here. 6 Additionally, the Employer, relying on Ming Quong, filed a motion to dismiss the unfair labor practices complaint. On July 2, 1974, presiding west coast Administrative Law Judge James T. Barker issued an Order granting the Employer's motion to dismiss on the basis of Ming Quong. General Counsel subsequently filed a request for review of the Administrative Law Judge's Order, and that request forms the subject of our Decision in the companion Case 31-CA-4402, issued this day, 215 NLRB No. 44. r The Board does not now pass on the Regional Director's recommenda- tion that Employer's Objection 1,c be overruled. 307 Regulations would be unnecessarily and unwisely to undermine the Board's efforts to guarantee that all cases be processed with maximum efficiency and equity for all parties concerned. The second consideration which compels, we believe, our decision to assert the Board's jurisdiction over the Employer is, as more fully set forth in the companion unfair labor practice case issued this day, 215 NLRB No. 44 (Case 31-CA-4402), the need to protect the statutory rights of employees who allegedly engaged, to their detriment, in protected concerted activities in reli- ance upon the Region's assertion of jurisdiction here. -The record indicates that shortly after the Region's assertion of jurisdiction, the Petitioner announced to the employees that the Board had asserted jurisdiction over the Employer and that they would enjoy the pro- tections of the Act if they engaged in concerted activi- ties in support of the Union. Thereafter, a majority of the unit employees having voted for the Petitioner, the Employer on April 9, 1974, allegedly discharged 13 employees for their prounion activities. In these cir- cumstances, for the Board to withdraw its jurisdiction now would have two unfortunate and unfair conse- quences: first, it would leave the employees open to alleged employer retaliation which they had justifiably believed would not result from their protected con- certed activities; and, second, it would deprive the em- ployees of the fruits of union representation and collec- tive bargaining which they had justifiably believed would result from their protected concerted activities. This we decline to do.8 Accordingly' we shall assert jurisdiction over the Employer here and order that a hearing be held to resolve the issues raised by the Employer's Objections 1, d(1) and (2). ORDER It is hereby ordered that a hearing be held before a duly designated Hearing Officer for the purpose of re- ceiving evidence to resolve the issues raised by Em- ployer's Objection 1, d(l) and (2), namely whether the Petitioner made material misrepresentations in claim- ing to have had a 3-year contract with the Vista Del Mar home and to have secured specified wage increases in its current negotiations with that home, and to ad- 8 Finally, it must be stressed that out decision in Ming Quong, supra, involved the Board's discretionary, rather than legal, jurisdictional stand- ards. In any event, the issue of such discretionary standards with respect to child care institutions is not altogether clear at this time and may well have to be reassessed in light of the recently enacted amendments to the Act, 93-PL-390. See Beverly Farm Foundation Incorporated, 215 NLRB No. 73 (Cases 14-CA-7893 and 14-RC-7687). For the reasons indicated herein, we think that the purposes of the Act will best be served here by exercising our discretion to assert jurisdiction over the representation dispute here. Member Fanning agrees that jurisdiction should be asserted here for the reasons stated. Additionally, however, he would assert jurisdiction here for the reasons stated in his dissent in Ming Quong, supra 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duce such other evidence as is relevant to the issues raised by Employer's Objections 1, d(1) and (2). IT IS FURTHER ORDERED that the Hearing Officer desig- nated for the purpose of conducting such hearing shall prepare and cause to be served on the parties a report containing resolutions of the credibility of witnesses, findings of fact, and recommendations to the Board as to-the disposition of said Objections. Within 10 days from the date of issuance of such report, any party may file with the Board in Washington, D.C., eight copies of exceptions thereto. Immediately upon the filing of such exceptions, the party filing the same shall serve a copy thereof on the other parties and shall file a copy with the Regional Director. If no exceptions are filed thereto, the Board will adopt the recommendations of the Hearing Officer. IT IS FURTHER ORDERED that the above-entitled matter be, and it hereby is, referred to the Regional Director for Region 31 for the purpose of conducting such hear- ing, and that the Regional Director be, and he hereby is, authorized to issue notice thereof.