Massachusetts Society for the Prevention of Cruelty to Children

334 NLRB No. 141 1 NOTICE: This opinion is subject to formal revision before publication in the bound 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. Massachusetts Society for the Prevention of Cruelty to Children and Service Employees Interna- tional Union, Local 509, AFL–CIO. Case 1–CA– 39151 August 16, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH Pursuant to a charge filed on June 19, 2001, the Ge n- eral Counsel of the National Labor Relations Board is- sued a complaint on June 27, 2001, alleging that the Re- spondent has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act by refusing the Union’s re- quest to bargain following the Union’s certification in Case 1–RC–21304. (Official notice is taken of the “re- cord” 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. On July 16, 2001, the General Counsel filed a Motion for Summary Judgment. On July 18, 2001, 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. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain but attacks the validity of the certification on the basis of the Board’s unit determination in the representa- tion proceeding. In addition, in its response to the Notice to Show Cause, the Respondent for the first time con- tends that the Union has a disqualifying conflict of inter- est.1 1 In support of this contention, the Respondent asserts that “for many years the Union has opposed the priv atization of statewide mental health services in order to preserve work for its public-employee mem- bers, who make up a majority of the Union’s membership.” This issue could have been litigated in the prior representation proceeding, and the Respondent does not contend that it has newly discovered or previously unavailable evidence concerning this matter. Accordingly, we find that this issue may not be litigated in this unfair labor practice proceeding. Colonial Gardens Care Center, 268 NLRB 613 fn. 2 (1984). Accord- ingly, we deny the Respondent’s cross-Motion for Summary Judgment and motion for a hearing. 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 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 un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, a nonprofit corporation with an office and a place of business in Jamaica Plain, Boston, Massa- chusetts (Respondent’s Boston facility), and approxi- mately 30 other facilities throughout the Co mmonwealth of Massachusetts, has been engaged in providing mental health care services, child welfare services, and behav- ioral programs to children and families within the Co m- monwealth of Massachusetts. Annually, the Respondent, in conducting its business operations, derives gross reve- nues in excess of $250,000, and purchases and receives at its Massachusetts facilities goods valued in excess of $5000 directly from points located outside the Com- monwealth of Massachusetts. We find that the Respon- dent 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 Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held April 11, 2001, the Union was certified on April 23, 2001, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time, regular part-time and fee for service pro- fessional and non-professional employees employed by the Employer at its 555 Amory Street, Jamaica Plain, Boston, Massachusetts facility, clinicians, family as- sessment clinicians, social workers, nurses, clinical nurse specialists, occupational therapists, speech and language pathologists, SAIN coordinators, physical therapists, parent support coordinators, developmental educators, program coordinators, service coordinators, early child development specialists, psychologists, CES workers, case managers, group leaders, home visitor DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 II’s, supervised visitation monitors, all claims support specialists, intake specialists, administrative assistants, program assistants, child care workers, receptionists, bookkeepers, secretaries, clerks, telephone specialists, custodians, department supports, teachers, family sup- port workers, family advocates, parent aides, home visitor I’s, parent partners, teacher’s aides, support group liaisons, father advocates, and father’s support li- aisons, and all other non-professional employees, but excluding all guards, regional administrators, volunteer directors, volunteer coordinators, parent educators, state-wide program directors, program directors, super- visors, team leaders, regional program directors, office managers, prevention coordinators, assistant directors, administrative planners, lead teachers, direct service managers, maintenance and facilities managers, and all other supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since April 25, 2001, the Union has requested the Re- spondent to bargain and, since the same date, the Re- spondent has refused. We find that this refusal consti- tutes an unlawful refusal to bargain in violation of Sec- tion 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after April 25, 2001, 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 affect- ing 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, Massachusetts Society for the Prevention of Cruelty to Children, Jamaica Plain, Boston, Massachu- setts, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Service Employees Inter- national Union, Local 509, AFL–CIO, as the exclusive bargaining representative of the employees in the bar- gaining 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 exclusive representative of the employees in the following appro- priate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time, regular part-time and fee for service pro- fessional and non-professional employees employed by the Employer at its 555 Amory Street, Jamaica Plain, Boston, Massachusetts facility, clinicians, family as- sessment clinicians, social workers, nurses, clinical nurse specialists, occupational therapists, speech and language pathologists, SAIN coordinators, physical therapists, parent support coordinators, developmental educators, program coordinators, service coordinators, early child development specialists, psychologists, CES workers, case managers, group leaders, home visitor II’s, supervised visitation monitors, all claims support specialists, intake specialists, administrative assistants, program assistants, child care workers, receptionists, bookkeepers, secretaries, clerks, telephone specialists, custodians, department supports, teachers, family sup- port workers, family advocates, parent aides, home visitor I’s, parent partners, teacher’s aides, support group liaisons, father advocates, and father’s support li- aisons, and all other non-professional employees, but excluding all guards, regional administrators, volunteer directors, volunteer coordinators, parent educators, state-wide program directors, program directors, super- visors, team leaders, regional program directors, office managers, prevention coordinators, assistant directors, administrative planners, lead teachers, direct service managers, maintenance and facilities managers, and all other supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Jamaica Plain, Boston, Massachusetts, cop- MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN 3 ies of the attached notice marked “Appendix.” 2 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respon- dent 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 25, 2001. (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. August 16, 2001 Peter J. Hurtgen, Chairman Wilma B. Liebman, Member John C. Truesdale, 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. 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- 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.” WE WILL NOT refuse to bargain with Service Employ- ees International Union, Local 509, AFL–CIO, as the exclusive representative of the employees in the bargain- ing 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, regular part-time and fee for service pro- fessional and non-professional employees employed by us at our 555 Amory Street, Jamaica Plain, Boston, Massachusetts facility, clinicians, family assessment clinicians, social workers, nurses, clinical nurse special- ists, occupational therapists, speech and language pa- thologists, SAIN coordinators, physical therapists, par- ent support coordinators, developmental educators, pro- gram coordinators, service coordinators, early child development specialists, psychologists, CES workers, case managers, group leaders, home visitor II’s, super- vised visitation monitors, all claims support specialists, intake specialists, administrative assistants, program as- sistants, child care workers, receptionists, bookkeepers, secretaries, clerks, telephone specialists, custodians, department supports, teachers, family support workers, family advocates, parent aides, home vis itor I’s, parent partners, teacher’s aides, support group liaisons, father advocates, and father’s support liaisons, and all other non-professional employees, but excluding all guards, regional administrators, volunteer directors, volunteer coordinators, parent educators, state-wide program di- rectors, program directors, supervisors, team leaders, regional program directors, office managers, prevention coordinators, assistant directors, administrative plan- ners, lead teachers, direct service managers, mainte- nance and facilities managers, and all other supervisors as defined in the Act. MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO CHILDREN