Kemmerer Village, Inc.

KEMMERER VILLAGE 421 Kemmerer Village, Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 279, af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Case 14-CA- 19961 August 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On March 16, 1989, 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 follow- ing the Union's certification in Case 14-RC-10466. (Official notice is taken of the "record" in the rep- resentation proceedings as defined in the Board's Rules and Regulations, Secs. 102.68 and 102 .69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Re- spondent filed its answer admitting in part and de- nying in part the allegations in the complaint. On April 12, 1989, the General Counsel filed a Motion for Summary Judgment . On April 14, 1989, the Board issued an order transferring the proceed- ing 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, but attacks the validity of the certification on the basis of the same contentions that were raised and rejected in the representation proceed- ing: (1) it is not an "employer engaged in an indus- try affecting commerce within the meaning of the Act" because it is licensed and controlled by the Il- linois Department of Children and Family Services (DCFS), and (2) the Board lacks jurisdiction be- cause the Respondent's "direction and control .. . is inexorably intertwined with the ecclesiastical mission of the Presbyterian Church (USA)." All representation issues raised by the Respondent were or could have been litigated in the prior rep- resentation 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 I In its answer, the Respondent denies that the unit is appropriate. This is an issue that could have been litigated in the representation proceeding. representation proceeding . We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding.2 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 fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, an Illinois corporation with an office and place of business in Assumption, Illinois, has been engaged in the operation of a child care facility. During the 12-month period ending Febru- ary 28, 1989, it derived gross annual revenues in excess of $250,000 and received $20,000 from the Federal Government. 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 mean- ing of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held January 20, 1989, the Union was certified on January 30, 1989, as the collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time employees employed by the Employer at its Assumption, Illinois facility, excluding guards, supervisors and professional employees as defined in the Act. The Union continues to be the exclusive repre- sentative under Section 9(a) of the Act. 8 The Respondent in its brief in opposition to the Motion for Summary Judgment contends that it has newly discovered and previously unavail- able evidence that would prove its affirmative defense that the Board lacks jurisdiction over it because it is a joint employer with and con- trolled by the Illinois Department of Children and Family Services (DCFS) and that a hearing be held so that it could present its evidence. We agree with counsel for the General Counsel as argued in her adden- dum to the brief in support of the Motion for Summary Judgment, that Respondent's proffered evidence of correspondence between it and DCFS subsequent to the representation hearing regarding employees ac- cused of abusing children raises a subject matter that was determined in the representation proceeding and that such evidence, therefore, is not in the nature of newly discovered or previously unavailable evidence Indeed, that issue was fully litigated in the underlying representation hearing including testimony from Respondent 's assistant executive direc- tor Havera regarding similar incidents and DCFS's involvement in per- sonnel matters relating to child abuse Further , the Respondent's other evidence of additional correspondence with DCFS soliciting DCFS's comments regarding its unionization and the possible effects on its budget represents more of the same kind of evidence that was addressed in the underlying representation hearing Moreover, all of these issues were fully discussed in the Regional Director 's Decision and Direction of Election. 296 NLRB No. 56 422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Refusal to Bargain Since February 14, 1989, the Union has request- ed the Respondent to bargain , and since February 22, 1989, the Respondent has refused . We find that this refusal constitutes an unlawful refusal to bar- gain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after February 22, 1989, to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate 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 ini- tial period of 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, Kemmerer Village, Inc., Assump- tion, Illinois, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with Teamsters, Chauf- feurs, Warehouseman and Helpers, Local No. 279, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, as the exclusive bargaining representative of the employees in the bargaining unit. (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 employees employed by the Employer at its Assumption, Illinois facility, excluding all guards, supervi- sors and professional employees as defined in the Act. (b) Post at its facility in Assumption, Illinois, copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Re- gional Director for Region 14, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 9 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- al 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." 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 collectively with the Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 279, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO as the exclusive representative of our employees in the bargaining unit. 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: KEMMERER VILLAGE 423 All full-time and regular part-time employees sors and professional employees as defined in employed by the Employer at its Assumption, the Act. Illinois facility excluding all guards, supervi- KEMMERER VILLAGE, INC.