Young Women's Christian Assn. of Metropolitan St. Louis

1 324 NLRB No. 64 1 The General Counsel also moved to withdraw the portion of the complaint in the introductory paragraph erroneously making ref- erence to a notice of hearing having issued. The motion is granted. 2 The Respondent contends that special circumstances exist be- cause the Board’s decision in Management Training Corp., 317 NLRB 1355 (1995), relied on by the Regional Director here, con- stituted an unwarranted departure from longstanding Board prece- dent. We note, however, that the validity of the Board’s decision in Management Training, supra, has recently been upheld by the Fourth and Sixth Circuits. See Pikeville United Methodist Hospital of Ken- tucky v. Steelworkers, 109 F.3d 1146 (6th Cir. 1997); and Teledyne Economic Development Corp. v. NLRB, 108 F.3d 56 (4th Cir. 1997). 3 Member Higgins notes that he would have granted review in the underlying case with respect to the assertion of jurisdiction over the Respondent. However, he agrees with his colleagues that the Re- spondent has raised no new issues in this ‘‘technical’’ 8(a)(5) pro- ceeding warranting a hearing and that summary judgment is appro- priate. NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal er- rors so that corrections can be included in the bound volumes. Young Women’s Christian Association of Metro- politan St. Louis and Service Employees Inter- national Union, Local No. 50, affiliated with Service Employees’ International Union, AFL– CIO, CLC. Case 14–CA–24582 September 11, 1997 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINS Pursuant to a charge and amended charge filed on May 20 and June 5, 1997, the General Counsel of the National Labor Relations Board issued a complaint on June 11, 1997, alleging that the Respondent has vio- lated Section 8(a)(5) and (1) of the National Labor Re- lations Act by refusing the Union’s request to bargain following the Union’s certification in Case 14–RC– 11739. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respond- ent filed an answer admitting in part and denying in part the allegations in the complaint. On July 29, 1997, the General Counsel filed a Mo- tion for Summary Judgment.1 On July 31, 1997, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. On August 14, 1997, the Re- spondent filed a response. Ruling on Motion for Summary Judgment In its answer and response, the Respondent admits its refusal to bargain, but attacks the validity of the certification on the ground that any assertion of juris- diction by the Board over the Respondent is inappro- priate and improper inasmuch as the Federal Govern- ment, through the Department of Health and Human Services, maintains such control over the terms and conditions of employment of the unit employees that the Respondent is prevented from engaging in mean- ingful bargaining, and that the Respondent and the Federal Government, through the Department of Health and Human Services, are joint employers. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation pro- ceeding.2 We, therefore, find that the Respondent has not raised any representation issue that is properly lit- igable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, authorized to do business under the laws of the State of Missouri, with an office and place of business in St. Louis, Missouri, has been engaged in the provision of educational and social services to the community. Dur- ing the 12-month period ending May 31, 1997, the Re- spondent, in conducting its business operations, de- rived gross revenues in excess of $250,000, and pur- chased and received at its St. Louis, Missouri facility, goods valued in excess of $5000 directly from points outside the State of Missouri. We find that the Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organization within the mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 28, 1997, the Union was certified on March 10, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time teachers, assist- ant teachers, family service workers, cook aides, and health services clerk employed by the Re- spondent at its St. Louis County Head Start pro- gram, excluding office clerical and professional employees, guards and supervisors as defined in the Act. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 If 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.’’ The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since April 30, 1997, the Union has requested the Respondent to bargain and, since that date, the Re- spondent has refused. We find that this refusal con- stitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 30, 1997, to bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by the law, we shall construe the initial pe- riod of the certification as beginning the date the Re- spondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Young Women’s Christian Association of Metropolitan St. Louis, St. Louis, Missouri, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union, Local No. 50, affiliated with Serv- ice Employees’ International Union, AFL–CIO, CLC as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employ- ment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time teachers, assist- ant teachers, family service workers, cook aides, and health services clerk employed by the Re- spondent at its St. Louis County Head Start pro- gram, excluding office clerical and professional employees, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in St. Louis, Missouri, copies of the at- tached notice marked ‘‘Appendix.’’4 Copies of the no- tice, on forms provided by the Regional Director for Region 14 after being signed by the Respondent’s au- thorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these pro- ceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since May 20, 1997. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 11, 1997 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll John E. Higgins, Jr., Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 YOUNG WOMEN’S CHRISTIAN ASSN. OF METROPOLITAN ST. LOUIS APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain with Service Em- ployees International Union, Local No. 50, affiliated with Service Employees’ International Union, AFL– CIO, CLC as the exclusive representative of the em- ployees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit: All full-time and regular part-time teachers, assist- ant teachers, family service workers, cook aides, and health services clerk employed by us at our St. Louis County Head Start program, excluding office clerical and professional employees, guards and supervisors as defined in the Act. YOUNG WOMEN’S CHRISTIAN ASSOCIA- TION OF METROPOLITAN ST. LOUIS