HeartShare Human Services of New York

611 317 NLRB No. 94 HEARTSHARE HUMAN SERVICES OF NEW YORK 1 With respect to the Respondent’s contention that certain of the instructors who voted in the election are supervisors, we note that the Respondent raised this issue for the first time in its exceptions to the hearing officer’s report on the Employer’s objections to the election. At no time prior to the election did the Respondent raise any issue as to the supervisory status of the instructors. Under long- standing Board policy, the Respondent’s contention was therefore barred as it in effect constituted a postelection challenge in the form of an objection. See NLRB v. A. J. Tower Co., 329 U.S. 324 (1946). See also Poplar Living Center, 300 NLRB 888 fn. 2 (1990); and Prior Aviation Service, 220 NLRB 460 (1975). The fact that the Su- preme Court issued a decision in Health Care & Retirement shortly after the election in which it rejected the Board’s interpretation and application of the statutory phrase ‘‘in the interest of the employer’’ in determining the supervisory status of nurses, does not in our view warrant disregarding the Board’s well-established policy against postelection challenges in this case. 2 See, e.g., Action Automotive, 284 NLRB 251 (1987), enfd. 853 F.2d 433 (6th Cir. 1988), cert. denied 488 U.S. 1041 (1989); and Murphy Bros., Inc., 265 NLRB 1574 (1982) (employee turnover not the kind of ‘‘unusual circumstance’’ within the meaning of Supreme Court’s decision in Ray Brooks v. NLRB, 348 U.S. 96 (1954), that Continued HeartShare Human Services of New York, Inc. and Office and Professional Employees Union, Local 153, AFL–CIO. Case 29–CA–18852 May 25, 1995 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS STEPHENS AND TRUESDALE Pursuant to a charge filed by the Union on January 23, 1995, the General Counsel of the National Labor Relations Board issued a complaint on March 3, 1995, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 29–RC–8269. (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 an an- swer admitting in part and denying in part the allega- tions in the complaint and asserting affirmative de- fenses. On April 28, 1995, the General Counsel filed a Mo- tion for Summary Judgment. On May 2, 1995, 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 May 16, 1995, the Respond- ent filed a response. 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 that it is an em- ployer subject to the Board’s jurisdiction and that the charge was filed and served in this proceeding, but de- nies all other allegations of the complaint and asserts as affirmative defenses that the bargaining unit cer- tified by the Board is inappropriate, that the Union en- gaged in objectionable conduct affecting the results of the election, and that certain of its instructors who voted in the election are statutory supervisors under NLRB v. Health Care & Retirement Corp., 114 S.Ct. 1778 (1994), and should be excluded from the unit. In addition, in its response to the Notice to Show Cause, the Respondent contends that, due to substantial turn- over since the election, the Union no longer represents a majority of the unit. All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding.1 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). Although the Respondent’s answer denies the com- plaint’s allegations that the Union was certified and re- quested bargaining and that the Respondent has re- fused, we find that the Respondent’s denials in this re- gard do not raise any issue warranting a hearing. The Respondent’s answer denies the allegation that the Union was certified on January 4, 1995, solely on the ground that the certification was improper, and thus to this extent clearly seeks to raise issues that were or could have been litigated in the representation proceed- ing. Although the Respondent’s answer also denies that the Union subsequently requested bargaining by tele- gram dated January 6, 1995, a copy of the Union’s January 6, 1995 telegram to the Respondent’s director requesting negotiations is attached as an exhibit to the General Counsel’s motion, and the Respondent has not disputed the authenticity of that document in response to the Notice to Show Cause. Although the Respond- ent’s answer further denies that the Respondent has re- fused to bargain with the Union since its January 4, 1995 certification, again it does so solely on the ground that the certification was improper. Moreover, in response to the Notice to Show Cause, the Respond- ent specifically states that it has refused to bargain in order to seek an appeal of the Board’s decision. Finally, we reject the Respondent’s contention in its response to the Notice to Show Cause that the com- plaint should be dismissed because of turnover in the unit since the election. It is well-established that em- ployee turnover is not a valid basis for refusing to bar- gain with a union in the instant circumstances.2 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would permit rebuttal of union’s majority status or warrant reexam- ination of certification). 3 The Respondent’s answer denies knowledge or information suffi- cient to form a belief as to whether the Union is a labor organiza- tion. The Respondent, however, failed to raise any issue as to the Union’s labor organization status in the underlying representation proceeding. Its failure to do so precludes the Respondent from rais- ing an issue as to the Union’s status in the instant proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992). Accordingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all times material, the Respondent has been a New York corporation with a place of business located at 163 MacDonough Street, Brooklyn, New York, where it is engaged in the operation of a day treatment center for developmentally disabled adults. During the 12-month period preceding the issuance of the com- plaint, the Respondent, in the course and conduct of its business operations, derived gross revenues in excess of $250,000 and purchased and received products, goods, and materials valued in excess of $50,000 di- rectly from firms located outside the State of New York. We find that the Respondent is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organi- zation within the meaning of Section 2(5) of the Act.3 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 12, 1994, the Union was certified on January 4, 1995, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All senior instructors, assistant instructors, behav- ioral specialists, dietary aides, maintenance em- ployees and receptionists employed by the Em- ployer at its MacDonough Street, Brooklyn, New York location, excluding all other employees, co- ordinators, assistant coordinators, administrative assistants, unit coordinators, guards and super- visors as defined in the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain About January 6, 1995, the Union, by telegram, re- quested the Respondent to bargain. Since about Janu- ary 4, 1995, the Respondent has refused to recognize and bargain with the Union as the exclusive collective- bargaining representative of the unit. We find that this refusal constitutes 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 January 4, 1995, 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, HeartShare Human Services of New York, Inc., Brooklyn, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Office and Professional Employees Union, Local 153, AFL–CIO as the exclu- sive 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 senior instructors, assistant instructors, behav- ioral specialists, dietary aides, maintenance em- ployees and receptionists employed by the Em- ployer at its MacDonough Street, Brooklyn, New York location, excluding all other employees, co- ordinators, assistant coordinators, administrative assistants, unit coordinators, guards and super- visors as defined in the Act. 613 HEARTSHARE HUMAN SERVICES OF NEW YORK 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.’’ (b) Post at its MacDonough Street, Brooklyn, New York facility copies of the attached notice marked ‘‘Appendix.’’4 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in con- spicuous 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 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 Office and Pro- fessional Employees Union, Local 153, 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 senior instructors, assistant instructors, behav- ioral specialists, dietary aides, maintenance em- ployees and receptionists employed by us at our MacDonough Street, Brooklyn, New York loca- tion, excluding all other employees, coordinators, assistant coordinators, administrative assistants, unit coordinators, guards and supervisors as de- fined in the Act. HEARTSHARE HUMAN SERVICES OF NEW YORK, INC.