Hanna Boys Center

HANNA BOYS CENTER 359 Hanna Boys Center and Social Services Union Local 535, Service Employees International Union, AFL-CIO Case 20-CA-22106 March 21, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 12, 1988 , the General Counsel of the National Labor Relations Board issued a 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 and to furnish information following the Union's certifica- tion in Case 20-RC-15178 i (Official notice is taken of the "record" in the representation pro- ceeding 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 its answer admitting in part and denying in part the allegations in the complaint 2 On October 12, 1988, the General Counsel filed a Motion for Summary Judgment On October 17, 1988, 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 delegat- ed 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 bargain and to furnish information to the Union,3 but attacks the validity of the certification in the underlying representation proceeding 4 All representation issues raised by the Respond ent were or could have been litigated in the prior representation proceeding The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would re quire the Board to reexamine the decision made in the representation proceeding We therefore find that the Respondent has not raised any representa tion issue that is properly litigable in this unfair labor practice proceeding 5 See Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941) There are no factual issues regarding the Union's request for information because the Respondent admitted that it refused to furnish the information Accord- ingly, we grant the Motion for Summary Judg- ment On the entire record, the Board makes the fol- lowing FINDINGS OF FACT I JURISDICTION The Respondent, a nonprofit corporation, with an office and place of business of Sonoma, Califor nia, operates a residential facility for boys, where it annually derives gross revenues in excess of $1 mil- lion and receives revenues in excess of $2000 di rectly from points outside the State of California 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 organization within the meaning of Section 2(5) of the Act ' The Board s decision is reported at 284 NLRB 1080 (1987) 2 The Respondent also submitted nine affirmative defenses 8 The Respondent denies that the information requested is relevant and necessary to the Union s role as exclusive bargaining representative of the unit employees It is well established however that the employees wage and employment information sought by the Union is presumptively rele vant for purposes of collective bargaining and must be furnished on re quest See e g Trustees of Masonic Hall 261 NLRB 436 (1982) Verona Dyestuff Division Mobay Chemical Corp 233 NLRB 109 (1977) The Re spondent has not attempted to rebut the relevance of the information re quested by the Union We therefore find that no material issues of fact exist with regard to the Respondents refusal to furnish the information sought by the Union The Respondent further denies that it receives any revenue within the meaning of the Act The Respondent however admits that it obtained in excess of $1 000 000 in donations of which more than $2 000 was di rectly from points outside the state of California during the fiscal year ending June 30 1988 These jurisdictional facts which are the same as were stipulated to by the Respondent in the representation proceeding as revenue were sufficient to support the assertion of jurisdiction in the rep resentation case The Respondent may not here claim that the Board should not assert jurisdiction because it now for the first time character izes its receipts as donations rather than revenues The Respondent also denies for the first time that the Union is a labor organization within the meaning of the Act The Respondent stipulated that the Union was a labor organization in the prior representation proceeding and the Re spondent may not now challenge that stipulation 4 The Respondent attacks the certification on the basis that there are special circumstances and new evidence that compel further hearing The Respondent contends that the Board acted in excess of its authority and in violation of the Establishment and Free Exercise Clauses of the First Amendment to the Constitution by asserting jurisdiction over it It fur ther argues that the Board unreasonably delayed administrative action and exceeded its statutory authority in this case failed to consider perti nent and material new evidence submitted by the Respondent and denied the Respondent due process by its perfunctory treatment of the Respond ent s claims and its excessive delay between the election and certification The Respondent also asserts that the bargaining unit is inappropriate that the Board departed from its established practices and procedures in this case and that the Board has deprived present employees of the Respond ent of their Sec 7 rights b The Respondent argues that new evidence submitted during the in vestigation of this unfair labor practice charge requires a new hearing The Respondent has not shown that such evidence is newly discovered or previously unavailable Thus it will not be considered here Sec 102 48 (d)(1) of the Board s Rules and Regulations Further even assum ing we were to consider that evidence such evidence would not alter our prior conclusion that the Board is not precluded from asserting Junsdic Lion over the Respondent To the extent the evidence is alleged to show that the Board lacks statutory jurisdiction Chairman Stephens believes that the Board must consider it even if belatedly proffered but he agrees with his colleagues that the Respondent has proffered no evidence suffi dent to make that showing 293 NLRB No 39 360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD II ALLEGED UNFAIR LABOR PRACTICES A The Certification Following the election held March 18, 1981,6 the Union was certified on April 11, 1988, as the col lective bargaining representative of the employees in the following appropriate unit Unit A All full-time and regular part time child care workers, recreation assistants, cooks, cooks helpers, and maintenance em ployees including plumbers, electricians, gar- deners, and custodians employed by the Em- ployer at its Sonoma, California location, ex- cluding all other employees, professional em- ployees, priests, nuns, and religious brothers, guards and supervisors as defined in the Act The Union continues to be the exclusive represent- ative under Section 9(a) of the Act B Refusal to Bargain Since July 1, and April 13, 1988, respectively, the Union has requested the Respondent to bargain and to furnish information, and since July 14, 1988, the Respondent has refused We find that this re- fusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act CONCLUSIONS OF LAW By refusing on and after July 14, 1988, to bar- gain with the Union as the exclusive collective bar gaining representative of employees in the appro- priate unit and to furnish the Union requested in- formation, 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 We also shall order the Respondent to furnish the Union the information requested To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial 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 6 The election involved two groups of employees designated as Units A and B The Union was not certified as the representative of the em ployees in Unit B 785 (1962), Lamar Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600 (5th Cir 1964), cert denied 379 US 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, Hanna Boys Center, Sonoma, California, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Refusing to bargain with Social Services Union Local 535, Service Employees International Union, AFL-CIO as the exclusive bargaining rep resentative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining representative of the unit employees (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol lowing appropriate 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 child care workers, recreation assistants, cooks, cooks helpers, and maintenance employees including plumbers, electricians, gardeners and custo- dians employed by the Employer at its Sonoma, California location, excluding all other employees, professional employees, priests, nuns, and religious brothers, guards and supervisors as defined in the Act (b) On request, furnish the Union information that is relevant and necessary to its role as the ex- clusive bargaining representative of the unit em- ployees (c) Post at its facility in Sonoma, California, copies of the attached notice marked "Appendix "' Copies of the notice, on forms provided by the Re gional Director for Region 20, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive 7 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 Nation at 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 HANNA BOYS CENTER 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 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent 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 ordered us to post and abide by this notice WE WILL NOT refuse to bargain with Social Services Union Local 535, Service Employees International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit, and WE WILL NOT refuse to furnish the Union information that is relevant and necessary to its 361 role as the exclusive bargaining representative of the unit employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 full-time and regular part -time child care workers, recreation assistants , cooks, cooks helpers, and maintenance employees including plumbers, electricians, gardeners and custo- dians employed by the Employer at its Sonoma, California location, excluding all other employees, professional employees, priests, nuns and religious brothers, guards and supervisors as defined in the Act WE WILL, on request, furnish the Union informa- tion that is relevant and necessary to its role as the exclusive bargaining representative of the unit em- ployees HANNA BOYS CENTER