Edward Street Daycare Center

326 NLRB No. 147 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. Edward Street Daycare Center, Inc. and Truck Driv- ers Union Local 170, a/w International Brother- hood of Teamsters, AFL–CIO. Case 1–CA– 36397 September 30, 1998 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge and amended charge filed on June 30, 1998, and July 24, 1998, respectively, the Acting General Counsel of the National Labor Relations Board issued a Complaint and Notice of Hearing on July 30, 1998, 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 1–RC–20792. (Official notice is taken of the “record” in the representation pro- ceeding 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 denying in part the allegations in the com- plaint. On September 11, 1998, the Acting General Counsel filed a Motion for Summary Judgment. On September 14, 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 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. 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,1 nor does it allege any special cir- cumstances 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 1 The Respondent attached to its response four documents that it characterizes as “new evidence.” However, the Respondent has not adequately explained why that evidence was not adduced at the repre- sentation case hearing. See NLRB v. Joseph E. Decker & Sons, 569 F.2d 357, 363–364 (5th Cir. 1978). 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 At all material times, the Respondent, a corporation with an office and place of business in Worcester, Mas- sachusetts, has been engaged in the operation of a day care center. During the calendar year ending December 31, 1997, the Respondent, in conducting its business operations, derived gross revenues in excess of $250,000 and pur- chased and received at its Worcester facility goods val- ued in excess of $5000 directly from points outside the Commonwealth of Massachusetts. 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.2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held May 15, 1998, the Union was certified on May 27, 1998, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time head teachers, as- sistant head teachers, assistant head teachers in training, teachers in training, the coordinator of billing and op- erations, the cook, the assistant cook, maintenance and housekeeping employees, and the bookkeeper em- ployed by the Employer at its Worcester, Massachu- setts location, but excluding all other employees, the executive director, the confidential secretary to the ex- ecutive director, the coordinator of social services, managers, guards, and 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 About June 23, 1998, the Union, by letter, requested the Respondent to recognize and bargain, and, by letter dated June 26, 1998, and at all times since June 26, 1998, the Respondent has failed and refused. We find that this failure and refusal constitutes an unlawful refusal to rec- 2 Although the Respondent’s answer to the complaint states that it is without knowledge as to whether the Union is a Sec. 2(5) labor organi- zation, the Respondent failed to raise this issue in the underlying repre- sentation proceeding. Accordingly, we find that the Respondent is precluded from now litigating the matter in this proceeding. See Biewer Wisconsin Sawmill, 306 NLRB 732 fn. 1 (1992); and Wickes Furniture, 261 NLRB 1062, 1063 fn. 4 (1982). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ognize and bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By failing and refusing on and after June 26, 1998, to recognize and 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 recognize and bargain on request with the Un- ion, 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 recognize and 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); Bur- nett 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, Edward Street Daycare Center, Inc., Worcester, Massachusetts, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Truck Drivers Union Lo- cal 170, a/w International Brotherhood of Teamsters, 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 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 and regular part-time head teachers, as- sistant head teachers, assistant head teachers in training, teachers in training, the coordinator of billing and op- erations, the cook, the assistant cook, maintenance and housekeeping employees, and the bookkeeper em- ployed by the Employer at its Worcester, Massachu- setts location, but excluding all other employees, the executive director, the confidential secretary to the ex- ecutive director, the coordinator of social services, managers, guards, and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facility in Worcester, Massachusetts, copies of the attached notice marked “Appendix.”3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 1 after being signed by the Respondent’s authorized 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 June 26, 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. September 30, 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 3If 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.” EDWARD STREET DAYCARE CENTER 3 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. WE WILL NOT refuse to bargain with Truck Drivers Union Local 170, a/w International Brotherhood of Teamsters, 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 bar- gaining unit: All full-time and regular part-time head teachers, as- sistant head teachers, assistant head teachers in training, teachers in training, the coordinator of billing and op- erations, the cook, the assistant cook, maintenance and housekeeping employees, and the bookkeeper em- ployed by us at our Worcester, Massachusetts location, but excluding all other employees, the executive direc- tor, the confidential secretary to the executive director, the coordinator of social services, managers, guards, and supervisors as defined in the Act. EDWARD STREET DAYCARE CENTER, INC.