Jefferson County Community Center, Inc.

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jefferson County Community Center, Inc. and Com- thereafter filed a response to the Notice To Show munity Center Professional Employees Associ- Cause. ation, Colorado Education Association, NEA. Pursuant to the provisions of Section 3(b) of the Case 27-CA-7349 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. DECISION AND ORDER Upon the entire record in this proceeding, the Board makes the following: BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Ruling on the Motion for Summary Judgment Upon a charge filed on June 9, 1981, by Commu- In its answer to the complaint and its response to nity Center Professional Employees Association, the Motion for Summary Judgment, Respondent Colorado Education Association, NEA, herein admits the request and its refusal to bargain with called the Union, and duly served on Jefferson the Union. It, however, challenges the Union's cer- County Community Center, Inc., herein called Re- tification, reiterating its contentions in the underly- County Community Center, Inc., herein called Re- i s spondent, the General Counsel of the National ing representation proceeding that the Board lacks Labor Relations Board, by the Regional Director jurisdiction over its operations; that the Regional for Region 27, issued a complaint on June 15, 1981, and excluded certain others from the bargaining and excluded certain others from the bargaining against Respondent, alleging that Respondent had against Respondent, alleging that Respondent had unit; that the Board improperly overruled certain engaged in and was engaging in unfair labor prac-ents challenges and objections to the tices affecting commerce within the meaning of first election; and that the Acting Regional Direc- Section 8(a)(5) and (1) and Section 2(6) and (7) of tor improperly overruled its objection to conduct the National Labor Relations Act, as amended. affecting the second election. Copies of the charge and complaint and notice of Review of the record herein, including the hearing before an administrative law judge were record in Case 27-RC-5990, reveals that on Febru- duly served on the parties to this proceeding. ary 1, 1980, the Union filed a representation peti- With respect to the unfair labor practices, the tion under Section 9 of the National Labor Rela- complaint alleges in substance that on May 19, tions Act. On June 27, 1980, after a hearing, the 1981, following a Board election in Case 27-RC- Regional Director issued his Decision and Direc- 5990,' the Union was duly certified as the exclusive tion of Election in which he found that the Board collective-bargaining representative of Respond- had jurisdiction over Respondent, rejecting Re- ent's employees in the unit found appropriate; and spondent's assertions that it was a political subdivi- that, commencing on or about June 3, 1981, and at sion of the State of Colorado. He also found that all times thereafter, Respondent has refused, and Respondent possessed sufficient control over the continues to date to refuse, to bargain collectively employment conditions of its employees to enable with the Union as the exclusive bargaining repre- it to bargain effectively with a labor organization. sentative, although the Union has requested and is Further, contrary to Respondent's positions, he in- requesting it to do so. Thereafter, Respondent filed cluded in the bargaining unit certain employees its answer to the complaint admitting in part, and who Respondent asserted were supervisors and em- denying in part, the allegations in the complaint, ployees who were working on 1-year Federal and raising certain "affirmative defenses." grants and he excluded employees not directly in- On July 21, 1981, counsel for the General Coun- volved in client care or contact. The Regional Di- sel filed directly with the Board a Motion for Sum- rector directed an election in two voting groups mary Judgment. Subsequently, on July 29, 1981, consisting of professional and nonprofessional em- the Board issued an order transferring the proceed- ployees, respectively. Respondent filed with the ing to the Board and a Notice To Show Cause Board a timely request for review of the Regional why the General Counsel's Motion for Summary Director's decision in which it reiterated the argu- Judgment should not be granted. Respondent ments previously rejected by the Regional Direc- tor. On August 4, 1980, the Board denied Respond- Official notice is taken of the record in the representation proceeding, ent's request for review. Case 27-RC-5990, as the term "record" is defined in Secs. 102.68 and Thereafter, the first election was conducted by 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 (4th mail and manual balloting. The professional em- Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 ployees voted 37 for, and 17 against, inclusion in F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967); Follettrr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 the same unit with the nonprofessional employees, (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. with 12 challenged and 4 void ballots. The overall 259 NLRB No. 22 JEFFERSON COUNTY COMMUNITY CENTER, INC. 187 tally revealed 60 votes for, and 59 against, the professional employees. Respondent filed a request Union, with 18 challenged and 3 void ballots. Re- for review of the Acting Regional Director's Sup- spondent challenged the 18 voters on the grounds plemental Decision which was denied by the Board that they were no longer employed and further as- on June 19, 1981. It thus appears that Respondent serted that certain of them had been improperly in- is attempting in this proceeding to relitigate issues cluded in the unit. It also filed timely objections to fully litigated and finally determined in the repre- the election alleging, in substance, that certain sentation proceeding. prounion alleged supervisors had intimidated an- It is well settled that in the absence of newly dis- tiunion or undecided employees; that there were ir- covered or previously unavailable evidence or spe- regularities regarding the mailed ballots; that a cial circumstances a respondent in a proceeding al- ballot of a professional employee should have been leging a violation of Section 8(a)(5) is not entitled voided; that the Board agent interfered with the to relitigate issues which were or could have been election; and that a ballot had been fraudulently litigated in a prior representation proceeding.2 cast by an ineligible employee. Thereafter, the Re- All issues raised by Respondent in this proceed- gional Director ordered a hearing on Respondent's ing were or could have been litigated in the prior challenges and objections. On November 6, 1980, representation proceeding, and Respondent does the Hearing Officer issued his report in which he not offer to adduce at a hearing any newly discov- recommended that the challenges to certain ballots ered or previously unavailable evidence, nor does be sustained, that the challenges to the remaining it allege that any special circumstances exist herein ballots be overruled, that the objection relating to which would require the Board to reexamine the the fraudulently cast ballot be sustained, and that decision made in the representation proceeding. We the remaining objections be overruled. He further therefore find that Respondent has not raised any recommended that if, after the issuance of the re- issue which is properly litigable in this unfair labor vised tally, the fraudulently cast ballot was deter- practice proceeding. Accordingly, we grant the minative, the election be set aside and a second Motion for Summary Judgment.3 election be directed. Respondent filed timely ex- On the basis of the entire record, the Board ceptions to the Hearing Officer's report. On March makes the following: 24, 1981, the Board adopted the Hearing Officer's report. FINDINGS OF FACT Subsequently, the ballots, the challenges to I. THE BUSINESS OF RESPONDENT which had been overruled, were opened and count- ed and a revised tally issued which revealed that Jefferson County Community Center, Inc., a the fraudulently cast ballot was determinative. Colorado corporation, with its principal office and Therefore, in accordance with the Board's March place of business at Arvada, Colorado, provides 24 order (not published in volumes of Board Deci- educational and health services for the develop- sions), a second election was conducted on May 4, mentally disabled. During the fiscal year ending 1981. The professional employees voted 23 for, and June 30, 1979, it had revenues in excess of 49 against, inclusion in the same unit with the non- $3,700,000, and purchased goods valued at $15,000 professional employees, with 2 challenged ballots. directly from points outside the State of Colorado. In addition, the professionals cast 53 votes for, and 19 against, the Union, with 2 challenged ballots. See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941): The tally for the nonprofessionalee es d employs Rulesand ReBgulations of the Board, Secs. 102.67(0 and 102.69(c). The tally for the nonprofessional employees I Respondent asserts in its answer to the complaint that it was not showed 17 votes for, and 55 against, the Union, served with the charge, although it does not renew this contention in its with 2 challenged ballots. response to the Motion for Summary Judgment nor in its response to the Board's Notice To Show Cause. The record reveals that Respondent was Respondent filed a timely objection to the served with the charge. second election in which it contended that the Re- Respondent also denies pars. 2(c), (d), and (e) of the complaint which gional Office had interfered with the election by al- allege that during the fiscal year ending June 30, 1979, it had revenues in gional Office had interfered with the election by al- excess of $3,700,000 and purchased goods valued at $15.000 directly from lowing the professional employees to vote again on points outside the State of Colorado, that it receives in excess of $220,000 whether they desired to be included in the same annually from Federal funds which are transferred directly across state lines, and that it is an employer within the meaning of Sec. 2(2), (6), and unit with the nonprofessional employees. The (7) of the Act. However, the Regional Director, in asserting jurisdiction Acting Regional Director issued his Supplemental in his Decision and Direction of Election, found that for the fiscal year Decision and Certification of Representative on ending June 30, 1979. Respondent had revenues of $3,724,222, that it pur- chased goods valued at approximately $15,000 directly from outside the May 19, 1981, in which he overruled Respondent's State of Colorado, and received in excess of $220,000 annually from Fed- objection, certified the Union as the bargaining eral funds which were transferred directly across state lines. Subsequent.- representativ of the professional employees, and ly, the Board denied Respondent's request for review in which it raised representative of the professional employees, and the issue of jurisdiction, and Respondent does not now offer to adduce certified the results of the election among the non- any new evidence. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In addition, it receives in excess of $220,000 annu- spondent to bargain collectively with it as the ex- ally from Federal funds which are transferred di- clusive collective-bargaining representative of all rectly across state lines. the employees in the above-described unit. We find, on the basis of the foregoing, that Re- Commencing on or about June 3, 1981, and con- spondent is, and has been at all times material tinuing at all times thereafter to date, Respondent herein, an employer engaged in commerce within has refused, and continues to refuse, to recognize the meaning of Section 2(6) and (7) of the Act, and and bargain with the Union as the exclusive repre- that it will effectuate the policies of the Act to sentative for collective bargaining of all employees assert jurisdiction herein. in said unit. II. THE LABOR ORGANIZATION INVOLVED Accordingly, we find that Respondent has, since on or about June 3, 1981, and at all times thereaf- Community Center Professional Employees As- sociation, Colorado Education Association, NEA, ter, refused to bargain collectively with the Union is a labor organization within the meaning of Sec- as the exclusive representative of the employees in is a labor organization within the meaning of Sec- tion 2(5) of the Act. the appropriate unit, and that, by such refusal, Re- spondent has engaged in and is engaging in unfair III. THE UNFAIR LABOR PRACTICES labor practices within the meaning of Section 8(a)(5) and (1) of the Act. A. The Representation Proceeding 1. The unit IV. THE EFFECT OF THE UNFAIR LABOR 1. The unit PRACTICES UPON COMMERCE The following employees of Respondent consti- tute a unit appropriate for collective-bargaining The activities of Respondent set forth in section purposes within the meaning of Section 9(b) of the III, above, occurring in connection with its oper- Act: ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- All social workers, case workers, counsel- tic, and commerce among the several States and or/evaluators, placement/follow-up specialists, tend to lead to labor disputes burdening and ob- therapists, nurses, teachers, home economists, behavior modification specialists, parent/- structing commerce and the free flow of com- behavior modification specialists, parent/- student involvement specialists, art/community merce. instructor, vocational training instructor and V. THE REMEDY nurse assistant; but excluding office clerical employees, and all guards, nonprofessional em- Having found that Respondent has engaged in ployees 4 and supervisors as defined in the Act, and is engaging in unfair labor practices within the and all other employees. 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 On May 4, 1981, a majority of the employees of as the exclusive representative of all employees in Respondent in said unit, in a secret-ballot election the appropriate unit and, if an understanding is conducted under the supervision of the Regional reached, embody such understanding in a signed Director for Region 27, designated the Union as agreement. their representative for the purpose of collective In order to insure that the employees in the ap- bargaining with Respondent. propriate unit will be accorded the services of their The Union was certified as the collective-bar- selected bargaining agent for the period provided selected bargaining agent for the period provided gaining representative of the employees in said unit by law, we shall construe the initial period of certi- on May 19, 1981, and the Union continues to be on May 19, 1981, and the Union continues to be fication as beginning on the date Respondent com- such exclusive representative within the meaning of Section 9(a) of the Act. mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- B. The Request To Bargain and Respondent's propriate unit. See Mar-Jac Poultry Company, Inc., Refusal 136 NLRB 785 (1962); Commerce Company d/b/a Commencing on or about May 28, 1981, and at Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 all times thereafter, the Union has requested Re- F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 'The complaint inadvertently describes the appropriate unit as exclud- 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ing professional employees, whereas it is clear from the record that non- The Board, upon the basis of the foregoing facts professional employees are excluded from this unit of professional em- ployees. and the entire record, makes the following: JEFFERSON COUNTY COMMUNITY CENTER, INC. 189 CONCLUSIONS OF LAW (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and aI Jeffmerson County Community Center, Inc. is conditions of employment with Community Center an employer engaged in commerce within the Professional Employees Association, Colorado meaning of Section 2(6) and (7) of the Act. Education Association, NEA, as the exclusive bar- 2. Community Center Professional Employees gaining representative of its employees in the fol- Association, Colorado Education Association, lowing appropriate unit NEA, is a labor organization within the meaning of Section 2(5) of the Act. All social workers, case workers, counsel- 3. All social workers, case workers, or/evaluators, placement/follow-up specialists, counselor/evaluators, placement/follow-up special- therapists, nurses, teachers, home economists, ists, therapists, nurses, teachers, home economists, behavior modification specialists, parent/- behavior modification specialists, parent/student in- student involvement specialists, art/community volvement specialists, art/community instructor, instructor, vocational training instructor and vocational training instructor and nurse assistant; nurse assistant; but excluding office clerical but excluding office clerical employees, and all employees, and all guards, nonprofessional em- guards, nonprofessional employees and supervisors ployees and supervisors as defined in the Act, as defined in the Act, and all other employees, con- and all other employees. stitute a unit appropriate for the purposes of collec- (b) In any like or related manner interfering tive bargaining within the meaning of Section 9(b) with, restraining, or coercing employees in the of the Act. rights guaranteed them in Section 7 of the Act. 4. Since May 19, 1981, the above-named labor 2. Take the following affirmative action which organization has been and now is the certified and the Board finds will effectuate the policies of the exclusive representative of all employees in the Act: aforesaid appropriate unit for the purpose of collec- (a) Upon request, bargain with the above-named tive bargaining within the meaning of Section 9(a) labor organization as the exclusive representative of the Act. of all employees in the aforesaid appropriate unit 5. By refusing on or about June 3, 1981, and at with respect to rates of pay, wages, hours, and all times thereafter, to bargain collectively with the other terms and conditions of employment and, if above-named labor organization as the exclusive an understanding is reached, embody such under- bargaining representative of all the employees of standing in a signed agreement. Respondent in the appropriate unit, Respondent (b) Post at its offices and facilities copies of the has engaged in and is engaging in unfair labor prac- attached notice marked "Appendix." 5 Copies of tices within the meaning of Section 8(a)(5) of the said notice, on forms provided by the Regional Di- Act. rector for Region 27, after being duly signed by 6. By the aforesaid refusal to bargain, Respond- Respondent's representative, shall be posted by Re- ent has interfered with, restrained, and coerced, spondent immediately upon receipt thereof, and be and is interfering with, restraining, and coercing, maintained by it for 60 consecutive days thereafter, employees in the exercise of the rights guaranteed in conspicuous places, including all places where them in Section 7 of the Act, and thereby has en- notices to employees are customarily posted. Rea- gaged in and is engaging in unfair labor practices sonable steps shall be taken by Respondent to within the meaning of Section 8(a)(1) of the Act. insure that said notices are not altered, defaced, or 7. The aforesaid unfair labor practices are unfair covered by any other material. labor practices affecting commerce within the (c) Notify the Regional Director for Region 27, meaning of Section 2(6) and (7) of the Act. in writing, within 20 days from the date of this ORDER Order, what steps have been taken to comply here- with. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- ' 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 lations Board hereby orders that the Respondent, Order of the National Labor Relations Board" shall read "Posted Pursu- Jefferson County Community Center, Inc., Arvada, ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. Colorado, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX sentative of all employees in the bargaining unit described below, with respect to rates of NOTICE TO EMPLOYEES POSTED BY ORDER OF THE pay, wages, hours, and other terms and condi- N IPOSTED BY ORDER OF THE RELATItions of employment and, if an understanding is reached, embody such understanding in a An Agency of the United States Government signed agreement. The bargaining unit is: WE WILL NOT refuse to bargain collectively All social workers, case workers, counsel- concerning rates of pay, wages, hours, and or/evaluators, placement/follow-up special- other terms and conditions of employment ists, therapists, nurses, teachers, home with Community Center Professional Employ- economists, behavior modification special- ees Association, Colorado Education Associ- ists, parent/student involvement specialists, ation, NEA, as the exclusive representative of art/community instructor, vocational train- the employees in the bargaining unit described ing instructor and nurse assistant; but ex- below. cluding office clerical employees, and all WE WILL NOT in any like or related manner guards, nonprofessional employees and su- interfere with, restrain, or coerce our employ- pervisors as defined in the Act, and all other ees in the exercise of the rights guaranteed employees. them by Section 7 of the Act. WE WILL, upon request, bargain with the JEFFERSON COUNTY COMMUNITY above-named Union, as the exclusive repre- CENTER, INC.