Brooklyn Psychosocial Rehabilitation Institute, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brooklyn Psychosocial Rehabilitation Institute, Inc. and District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO. Case 29-CA-8100 September 27, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND JENKINS Upon a charge filed on June 19, 1980, by District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, herein called the Union, and duly served on Brooklyn Psychosocial Reha- bilitation Institute, Inc., herein called Respondent, the General Counsel of the National Labor Rela- tions Board, by the Regional Director for Region 29, issued a complaint on July 31, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (I) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on May 16, 1980, following a Board election in Case 29-RC- 4812,' the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropriate; and that, commencing on or about June 26, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collec- tively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On September 4, 1980, Respondent filed its answer to the complaint and on May 6, 1982, filed an amendment to its answer admitting in part, and denying in part, the allega- tions in the complaint. On June 14, 1982, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 25, 1982, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary i Official notice is taken of Ihe record in the representation proceld- ing, Case 29 RC-4812, as the term "record" is defined ill Sccs. 10268 and 102.6 9(g) of tile Board's Rules and Regulations, Series 8., as amended See LTV Electrosystems. Inc.. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968): Goldenr Age Bevirage Co., 167 NI RB 151 (11967). enfd. 415 F.2d 26 (5th Cir 1969). Inlertyle Cu. v. PenCllo. 269 F Supp) 573 (DC.Va. 1967). Follerr Corp., 164 NILRB 378 (1967), enfd. 397 F.2d 91 (7th Cir 1968): Sec. 91d) of the NLRA. as amended. 264 NLRB No. 9 Judgment should not be granted. On July 8, 1982, the General Counsel filed an amendment to the Motion for Summary Judgment. Respondent there- after filed a response to the Notice To Show Cause and a Cross-Motion for Summary Judgment. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motions for Summary Judgment In its answer and amended answer to the com- plaint, in its Cross-Motion for Summary Judgment, and in its response to the General Counsel's Motion for Summary Judgment, Respondent at- tacks the appropriateness of the unit and, conse- quently, the validity of the certification of the Union as the exclusive bargaining representative of the employees in the appropriate unit. In addition, Respondent contends that special circumstances exist in this case in view of the fact that at the time the Regional Director issued his Supplemental De- cision and Order the full Board had not yet ren- dered its decisions in Ithaca College, 261 NLRB 577 (1982); Thiel College, 261 NLRB 580 (1982); and Duquesne University of the Holy Ghost, 261 NLRB 587 (1982), for the first time applying N.L.R.B. v. Yeshiva University, 444 U.S. 672 (1980), with detailed, factual analyses and extended expla- nations, in which various individuals analogously situated to those here were found to be managerial employees within the meaning of Yeshiva, and that those decisions should be followed in the instant matter and Respondent's counselors/managers be found managerial employees, since they substantial- ly determine the program of an institute dedicated to the emerging discipline of psychosocial rehabili- tations. Respondent contends that the Board decisions in Duquesne University, Thiel College, and Ithaca Col- lege should be followed in the instant matter and that the counselors/managers in issue exercise com- parable authority in their unique circumstances, in- asmuch as they decide or make effective recom- mendations in virtually all key areas identified by Yeshiva, and, in addition, exercise substantial au- thority over matters outside the academic sphere. While we agree that our intervening decisions in Ithaca College. Thiel College, and Duquesne Univer- sity constitute sufficient "special circumstances" to warrant review of the determination made in the representation proceeding concerning the alleged managerial status of counselors/managers, we also find that such cases contained factual situations 114 BROOKLYN PSYCHOSOCIAL REHABILITATION INSTITUITE. INC which were very similar to those in Yeshiva, and required the same findings. Upon review, however, we here reaffirm the determination made in the representation proceeding. In Yeshiva the Supreme Court held that the full- time faculty members therein were managerial em- ployees excluded from the coverage of the Act. The Court found that the faculty effectively deter- mined the curriculum, grading system, admission and matriculation standards, academic calendars, and course schedules, and that the faculty's author- ity extended beyond strictly academic areas; i.e., hiring, tenure, sabbaticals, terminations, and promo- tions. Finally, the Court found that, although the administration retained the power to make final de- cisions, the overwhelming majority of faculty rec- ommendations were followed. In Ithaca College the Board dismissed the petition seeking to represent a unit of all full-time faculty. The Board found that the faculty at Ithaca pos- sessed and exercised authority similar to that of the faculty in Yeshiva. It noted the faculty's authority to formulate and effectuate policies for their re- spective schools, including course offerings, class size, credit hours, teaching assignments, admission standards, academic standing, examinations, grad- ing, and graduation requirements. Additionally, the Board noted that the faculty possessed authority in the hiring of faculty, including deans, the tenure of the faculty, and an effective voice in budgetary matters and facilities planning. In Thiel College the Board held that the faculty made decisions and effective recommendations in the overwhelming majority of critical areas relied on by the Supreme Court in Yeshiva. The Board noted that the faculty constitution and the faculty bylaws authorized the professors to play such role, and that the record established that, through the faculty council, the faculty executive committee, and other faculty committees, such power was ac- tually exercised. Moreover, the Board noted that the faculty did not have professional interests sepa- rate from those of its employer, and that it neces- sarily played a large role in operating the college. In Duquesne University the Board dismissed a pe- tition seeking a unit of all full-time faculty at the School of Law. The Board held that the manageri- al authority possessed by the faculty in the School of Law was nearly identical to that possessed by the faculty in Yeshiva in such critical academic matters as curriculum, grading systems, and admis- sion and matriculation standards. And, as in Yeshi- va, the faculty exercised authority in nonacademic matters, including decisions concerning hiring and tenure. The record of the prior representation proceed- ing, which is before us, shows that Respondent filed a request for review of the Regional Direc- tor's Decision and Direction of Election in Case 29-RC-4812, which the Board on April 30, 1980, by telegraphic order, denied as it raised no substan- tial issues warranting review. Subsequently, Re- spondent filed a motion for rehearing, reconsider- ation, and reopening of the record in light of the Supreme Court's decision in Yeshiva. On February 17, 1981, the Regional Director issued an order re- opening hearing and a notice of hearing in Case 29-RC-4812 deeming additional information neces- sary with regard to the management status of the unit employees. On November 4, 1981, following the reopened hearing, the Regional Director issued a Supplemental Decision and Order and, on March 12, 1982, the Board denied Respondent's request for review of the Regional Director's Supplemental Decision and Order. We find no basis for disturbing the findings of the Regional Director in Case 29-RC-4812. More- over, we note that the issue of the application of Yeshiva was fully litigated in the representation proceeding and that Respondent's reliance on Ithaca College, Thiel College, and Duquesne Univer- sity is misplaced inasmuch as those cases were clearly similar to Yeshiva, and Respondent has failed to show how the faculty in this proceeding exercises comparable authority in making academic as well as nonacademic policy. Moreover, Respondent has failed to offer evi- dence to refute the findings of the Regional Direc- tor in his Supplemental Decision and Order, that Respondent is primarily run by its administration, and that whatever independent decisionmaking power the counselors possess is related chiefly to the discharge of their professional duties, and that the counselors are not involved in drafting budget or grant proposals, are not involved in decisions re- garding how many members/residents should be admitted to the facilities, or how Respondent should be generally organized or structured. Finally, we find that by its arguments pro- pounded in its response to the Notice To Show Cause and in support of its Cross-Motion for Sum- mary Judgment Respondent is attempting to reliti- gate the same issues which it raised and litigated in the prior representation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled 115 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to relitigate issues which were or could have been litigated in a prior representation proceeding. 2 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any additional special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issues which are properly litigable in this unfair labor practice proceeding. Accordingly, we grant the General Counsel's Motion for Sum- mary Judgment and deny Respondent's Cross- Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT The Respondent, Brooklyn Psychosocial Reha- bilitation Institute, Inc., is a nonprofit corporation duly organized under, and existing by virtue of, the laws of the State of New York. At all times materi- al, Respondent has maintained its principal place of business at 3 Lafayette Avenue, in the Borough of Brooklyn, City and State of New York, herein called the Lafayette Center, and a place of business at 50 Nevins Street, in the Borough of Brooklyn, City and State of New York, herein called the Boerum Hill facility, where it is engaged in operat- ing a community residence for former mental pa- tients and a psychosocial rehabilitation program to deinstitutionalize and normalize patients to allow them to return as functioning members of society, and in providing psychosocial services and related services. At all times prior to January 1, 1980, Brooklyn Psychosocial Rehabilitation Institute, Inc., a New York corporation, and Boerum Hill Rehabilitation Residence, a sole proprietorship, had been affiliated business enterprises with common officers, owner- ship, directors, management, and supervision; had formulated and administered a common labor policy affecting employees of said operations; had shared common premises and facilities; had pro- vided services for and made sales to each other; had interchanged personnel with each other; and had held themselves out to the public as a single integrated business enterprise. By virtue of the foregoing operations, Brooklyn Psychosocial Reha- bilitation Institute, Inc., and Boerum Hill Rehabili- 2 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs 102.h67(f) and 102 69(c). tation Residence constitute a single integrated en- terprise and a single employer within the meaning of the Act. On or about January 1, 1980, the operations of Brooklyn Psychosocial Rehabilitation Institute, Inc., and Boerum Hill Rehabilitation Residence were combined to form one organization, Brooklyn Psychosocial Rehabilitation Institute, Inc., which, since said date has been, and continues to be, en- gaged in the same business operations, at the same locations, and providing the same services. During the past year, which period is representa- tive of its annual operations generally, Respondent, in the course and conduct of its business, derived gross annual revenues therefrom in excess of $1 million and purchased and caused to be delivered to Boerum Hill and the Lafayette Center foodstuffs and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were delivered to Boerum Hill and the Lafayette Center in interstate commerce directly from States outside the State of New York and from other enterprises located in the State of New York, each of which other enterprises had re- ceived said goods and materials in interstate com- merce directly from States other than the State of New York. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOI.VED District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and De- partment Store Union, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All technical employees including counsel- ors employed by the Employer at the Brook- lyn Psychosocial Rehabilitation Institute and at the Boerum Hill Rehabilitation Residence, ex- clusive of all housekeeping employees, food service employees, maintenance employees, 116 BROOKLYN PSYCHOSOCIAL REHABILITATION INSTITUTE, INC elevator operators, clerical employees, profes- sional employees and all other employees, guards and all supervisors as defined in Sec- tion 2(11) of the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The certification On April 30, 1980, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 29, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on May 16, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about May 28 and June 25, 1980, and at all times thereafter, the Union has re- quested Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about June 26, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since June 26, 1980, and at all times thereafter, refused to bargain collectively with the Union as the exclu- sive representative of the employees in the appro- priate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the 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 as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to ensure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962): Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Brooklyn Psychosocial Rehabilitation Insti- tute, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and De- partment Store Union, AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All technical employees including counselors employed by the Employer at the Brooklyn Psy- chosocial Rehabilitation Institute and at the Boerum Hill Rehabilitation Institute Residence, ex- clusive of all housekeeping employees, food service employees, maintenance employees, elevator opera- tors, clerical employees, professional employees and all other employees, guards and all supervisors as defined in Section 2(11) of the Act, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since May 16, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about June 26, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent 117 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Brooklyn Psychosocial Rehabilitation Institute, Inc., Brooklyn, New York, its officers, agents, suc- cessors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District 1199, Na- tional Union of Hospital and Health Care Employ- ees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All technical employees including counsel- ors employed by the Employer at the Brook- lyn Psychosocial Rehabilitation Institute and at the Boerum Hill Rehabilitation Institute Resi- dence, exclusive of all housekeeping employ- ees, food service employees, maintenance em- ployees, elevator operators, clerical employees, professsional employees and all other employ- ees, guards and all supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at its places of business at 3 Lafayette Avenue and at 50 Nevins Street in the Borough of Brooklyn, City and State of New York, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps have been taken to comply here- with. 3 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 Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with District 1199, National Union of Hospital and Health Care Employees, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All technical employees including counsel- ors employed by the Employer at the Brooklyn Psychosocial Rehabilitation Insti- tute and at the Boerum Hill Rehabilitation Institute Residence, exclusive of all house- keeping employees, food service employees, 118 BROOKLYN PSYCHOSOCIAL REHABILITATION INSTITUTE, INC. 119 maintenance employees, elevator operators, and all other employees, guards and all su- clerical employees, professional employees pervisors as defined in the Act. BROOKLYN PSYSCHSOCIAL REHARIILI- TATION INSTITUTE, INC.