Career Systems Development Corp.

305 NLRB No. 16 SDR D--2316 Northampton, PA UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD CAREER SYSTEMS DEVELOPMENT CORPORATION and PENNSYLVANIA SOCIAL SERVICES UNION LOCAL 668 OF THE SERVICE EMPLOYEES INTERNATIONAL UNION, AFL--CIO Case 4--CA--19672 September 30, 1991 By Chairman Stephens and DECISION members Devaney AND ORDER and Randabrugh On April 25, 1991, the General Counsel of the National Labor Relations Board issued a complaint and on July 9, 1991, amended the complaint 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 4--RC--17087. (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 Respondent filed its answer admitting in part and denying in part the allegations in the complaint. On August 19, 1991, the General Counsel filed a Motion for Summary Judgment. On August 21, 1991, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 305 NLRB No. 16 D--2316 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 basis that the Board does not have jurisdiction over Respondent. In its response to the General Counsel's Motion for Summary Judgment, Respondent reiterated its position that the Board does not have jurisdiction over Respondent and states that it has no objection to the Motion for Summary Judgment. All representation issues raised by the Respondent were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. 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 Judgment. On the entire record, the Board makes the following Findings of Fact I. Jurisdiction The Respondent, Career Systems Development Corporation, a Delaware corporation, is engaged in the education and training of adults and adolescents for placement in the job market and operates a facility in Northampton, Pennsylvania, where it is engaged in providing educational and treatment services for incarcerated and adjudicated juveniles. During the year ending April 25, 1991, Respondent received gross revenues in excess of $1,000,000 and purchased and received goods and materials valued in excess of $50,000, at its Northampton, Pennsylvania facility, directly from points D--2316 outside the Commonwealth of Pennsylvania. 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 5, 1990, the Union was certified on February 19, 1991, as the collective-bargaining representative of the employees in the following appropriate unit: Included: All full-time and regular part-time employees employed by the Respondent at the Weaversville Intensive Treatment Unit in Northampton, Pennsylvania, including program support assistant, counselor, correction treatment services counselor, case worker, unit team leaders, unit team counselors, food service cooks and facilities technician. Excluded: Project secretary, case manager, project manager, manager of program, office clerical employees, confidential employees, managers, student interns, guards and supervisors 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 March 1, 1991, the Union has requested the Respondent to bargain, and since March 18, Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a) (5) and (1) of the Act. D--2316 Conclusions of Law By refusing on and after March 18, 1991, 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 affecting 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 Section 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 understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date the Respondent 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, Career Systems Development Corporation, Northampton, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Pennsylvania Social Services Union Local 668 of the Service Employees International Union, AFL--CIO, as the exclusive bargaining representative of the employees in the bargaining unit. D--2316 (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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: Included: All full-time and regular part-time employees employed by the Respondent at the Weaversville Intensive Treatment Unit in Northampton, Pennsylvania, including program support assistant, counselor, correction treatment services counselor, case worker, unit team leaders, unit team counselors, food service cooks and facilities technician. Excluded: Project secretary, case manager, project manager, manager of program, office clerical employees, confidential employees, managers, student interns, guards and supervisors as defined in the Act. (b) Post at its facility in Weaversville, Pennsylvania, copies of the attached notice marked ''Appendix. 1 Copies of the notice, on forms provided by the Regional Director for Region 4 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 conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 1 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. 2316 (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C. September 30, 1991 James M. Stephens, Chairman John N. Raudabaugh, Member NATIONAL LABOR RELATIONS BOARD (SEAL) D--2316 MEMBER DEVANEY, dissenting. For the reasons set forth in my dissenting opinion in the underlying representation proceeding, 301 NLRB No. 59 (Jan. 30, 1991), I would decline to assert jurisdiction over the Respondent. I therefore dissent from my colleagues' finding here that the Respondent has violated Section 8(a) (5) and (1) of the Act by its refusal to bargain with the Union. Dated, Washington, D.C. September 30, 1991 Dennis M. Devaney, Member NATIONAL LABOR RELATIONS BOARD D--2316 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Pennsylvania Social Services Union Local 668 of the Service Employees International Union, 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: Included: All full-time and regular part-time employees employed by the Respondent at the Weaversville Intensive Treatment Unit in Northampton, Pennsylvania, including program support assistant, counselor, correction treatment services counselor, case worker, unit team leaders, unit team counselors, food service cooks and facilities technician. Excluded: Project secretary, case manager, project manager, manager of program, office clerical employees, confidential employees, managers, student interns, guards and supervisors as defined in the Act. CAREER SYSTEMS DEVELOPMENT CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 615 Chestnut Street, Seventh Floor, Philadelphia, Pennsylvania 19106-4404, Telephone 215--597--7643.