The Skills Group

327 NLRB No. 2 1 NOTICE: This opinion is subject to formal revision before publication in the Board volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. The Skills Group and Pennsylvania Social Services Union Local 668 a/w Service Employees Interna- tional Union, AFL–CIO. Case 6–CA–30003 October 29, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on August 20, 1998, the Acting General Counsel of the National Labor Relations Board issued a complaint on August 28, 1998, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Un- ion’s request to bargain following the Union’s certifica- tion in Case 6–RC–11518. (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 an answer admitting in part and deny- ing in part the allegations in the complaint and asserting affirmative defenses. On September 21, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On September 22, 1998, the Board issued an order transferring the pro- ceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent did not file 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 attacks the validity of the certification on the basis of the Board’s determination on the appropriateness of the unit in the representation pro- ceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding.1 We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate 1 Member Hurtgen dissented from the denial of the Respondent’s request for review in the underlying representation case, and he remains of that view. However, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass v. NLRB, 313 U.S. 144, 162 (1941). In light of this, and for institutional reasons, he agrees with the decision to grant the Acting General Counsel’s Motion for Summary Judgment. Glass Co., supra. Accordingly, we grant the Motion for Summary Judgment. FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, with facilities located in 11 counties in Central Pennsylvania, including Cambria County, has been engaged in business as a non- profit corporation which provides training, vocational, and rehabilitation services to individuals with mental health/mental retardation disabilities. During the 12- month period ending July 31, 1998, the Respondent, in conducting its operations described above, derived gross revenues in excess of $250,000 from services provided to the County of Cambria, which is itself directly engaged in interstate commerce, and purchased and received at its Cambria County, Pennsylvania facilities products, goods, and materials valued in excess of $5000 directly from points 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 June 25, 1998, the Union was certified on July 8, 1998, as the exclusive collective- bargaining representative of the employees in the fol- lowing appropriate unit: All full-time and regular part-time nonprofessional em- ployees including residential program assistants, resi- dential program supervisors, adult training service aides, adult training service instructors, mobile work force employees and team leaders, transportation coor- dinators and staff, school based program workers, and office clerical employees employed by the Employer at its facilities located in Cambria County, Pennsylvania; excluding program specialists and guards, other profes- sional employees 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 July 23, 1998, the Union, by letter, has requested the Respondent to bargain and since July 30, 1998, the Respondent, by letter, has refused. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after July 30, 1998, to bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the appropriate unit, the Re- spondent has engaged in unfair labor practices affecting DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 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 the law, we shall construe the initial period of the cer- tification 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, The Skills Group, Cambria County, Penn- sylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Pennsylvania Social Services Union, Local 668 a/w Service Employees Inter- national Union, AFL–CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, 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 employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time nonprofessional em- ployees including residential program assistants, resi- dential program supervisors, adult training service aides, adult training service instructors, mobile work force employees and team leaders, transportation coor- dinators and staff, school based program workers, and office clerical employees employed by the Employer at its facilities located in Cambria County, Pennsylvania; excluding program specialists and guards, other profes- sional employees and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Cambria County, Pennsylvania, copies of the attached notice marked “Appendix.”2 Copies of the 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 Na- notice, on forms provided by the Regional Director for Region 6 after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent 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 al- tered, 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 facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since July 30, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. October 29, 1998 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” SKILLS GROUP 327 NLRB No. 2 3 To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with Pennsylvania So- cial Services Union, Local 668 a/w Service Employees International Union, AFL–CIO, as the exclusive repre- sentative 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 bar- gaining unit: All full-time and regular part-time nonprofessional em- ployees including residential program assistants, resi- dential program supervisors, adult training service aides, adult training service instructors, mobile work force employees and team leaders, transportation coor- dinators and staff, school based program workers, and office clerical employees employed by us at our facili- ties located in Cambria County, Pennsylvania; exclud- ing program specialists and guards, other professional employees and supervisors as defined in the Act. THE SKILLS GROUP