Family Service Agency of San Francisco

1 325 NLRB No. 86 1 In its answer, the Respondent denies par. 1 of the complaint, which alleges that the charge in this proceeding was filed by the Union on December 8, 1997, and that a copy was served on the Re- spondent on December 11, 1997. In addition, although the Respond- ent admits that the Union requested bargaining and that it failed to bargain, the Respondent denies the complaint allegations that these events took place on October 20 and 23, 1997, respectively. The General Counsel has attached to the Motion for Summary Judgment a copy of the charge and the affidavit of service, which establish that the charge was filed on December 8, 1997, and served on December 11, 1997. The General Counsel also attached a copy of an October 20, 1997 letter, sent by the Union to the Respondent, in which the Union requested the Respondent to meet and negotiate with it. The Respondent does not dispute the authenticity of these documents. Finally, the Respondent itself attached to its memoran- dum in opposition to Motion for Summary Judgment a copy of the letter it sent the Union on October 23, 1997, acknowledging receipt of the Union’s October 20, 1997 communication and stating that it ‘‘has not yet decided whether to accept the NLRB certification.’’ Accordingly, we find that the Respondent’s denials raise no material issues of fact warranting a hearing. 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. Family Service Agency of San Francisco and Serv- ice Employees International Union, Local 790, AFL–CIO. Case 20–CA–28191 March 30, 1998 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS FOX AND LIEBMAN Pursuant to a charge filed on December 8, 1997, the General Counsel of the National Labor Relations Board issued a complaint on December 22, 1997, and an amendment to complaint on January 16, 1998, al- leging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refus- ing the Union’s request to bargain following the Union’s certification in Case 20–RC–17201. (Official notice is taken of the ‘‘record’’ in the representation proceeding as defined in the Board’s Rules and Regu- lations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed answers admitting in part and denying in part the allegations in the complaint and the amendment to the complaint. On February 18, 1998, the General Counsel filed a Motion for Summary Judgment. On February 19, 1998, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the mo- tion should not be granted. The Respondent filed a re- sponse. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bargain but attacks the validity of the certification on the grounds that the Union has failed and refused to file the reports required by the Labor Management Re- porting and Disclosure Act, and that the Board has failed to consider certain issues raised by the Respond- ent’s objections to the election in the representation proceeding. 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. We therefore find that the Respondent has not raised any representation issue that is properly litigable 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 Judg- ment.1 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a nonprofit, charitable California corporation with a place of busi- ness in San Francisco, California, has been engaged in providing social services to the general public pursuant to contracts with state and local government entities. During the 12-month period ending November 30, 1997, the Respondent, in conducting its business oper- ations, received gross revenues in excess of $250,000 and purchased and received goods and/or services val- ued in excess of $2500 which originated from points located outside the State of California. We find that the Respondent 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 meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 8, 1997, the Union was certified on October 17, 1997, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees, in- cluding Assistant Teachers, Teacher’s Aides and Supervisory Teachers employed by the Employer at its Family Development Center located at 2730 Bryant Street, San Francisco, California; exclud- ing the child Development Specialist, the Teenage 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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.’’ Pregnancy Presentation Program, guards and su- pervisors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain Since October 20, 1997, the Union has requested the Respondent to bargain, and, since about October 23, 1997, the Respondent has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in vio- lation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after October 23, 1997, to bar- gain with the Union as the exclusive collective-bar- gaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor prac- tices affecting commerce within the meaning of Sec- tion 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, Family Service Agency of San Francisco, San Francisco, California, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees International Union, Local 790, AFL–CIO as the ex- clusive bargaining representative of the employees 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 employees, in- cluding Assistant Teachers, Teacher’s Aides and Supervisory Teachers employed by the Employer at its Family Development Center located at 2730 Bryant Street, San Francisco, California; exclud- ing the child Development Specialist, the Teenage Pregnancy Presentation Program, guards and su- pervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in San Francisco, California, copies of the attached notice marked ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Director for Region 20 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 October 23, 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. March 30, 1998 llllllllllllllllll William B. Gould IV, Chairman llllllllllllllllll Sarah M. Fox, Member llllllllllllllllll Wilma B. Liebman, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 3 FAMILY SERVICE AGENCY OF SAN FRANCISCO 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 790, AFL–CIO as the exclusive representative of the employees 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 employees, in- cluding Assistant Teachers, Teacher’s Aides and Supervisory Teachers employed by us at our Fam- ily Development Center located at 2730 Bryant Street, San Francisco, California; excluding the child Development Specialist, the Teenage Preg- nancy Presentation Program, guards and super- visors as defined in the Act. FAMILY SERVICE AGENCY OF SAN FRANCISCO