Spectrum Juvenile Justice Services

364 NLRB No. 149 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. Spectrum Juvenile Justice Services and International Union, Security, Police and Fire Professionals of America (SPFPA). Case 07–CA–180451 November 22, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on July 19, 2016, by International Union, Security, Police and Fire Profes- sionals of America (the Union), and amended charges filed on August 12 and 16, 2016, the General Counsel issued an amended complaint on September 8, 2016, alleging that Spectrum Juvenile Justice Services (the Respondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 07–RC–169521. (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(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the amended complaint, and asserting an affirmative defense. On October 4, 2016, the General Counsel filed a Mo- tion for Summary Judgment. On October 5, 2016, the National Labor Relations Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed a response. On October 19, 2016, the Region issued an Amendment to Complaint correcting the date of the second amended charge from August 17 to August 16, and the Respondent did not file an amend- ed answer. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the certification of representative based on its objections to the election in the underlying representation 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, 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 Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with facilities in Highland Park, Michigan (Highland Park facilities), has been engaged in the operation of a maximum security juvenile detention center. In conducting its operations during the calendar year ending December 31, 2015, the Respondent purchased and received at its Highland Park facilities goods valued in excess of $50,000 directly from points outside the State of Michigan. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(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 representation election held on March 3, 2016, the Union was certified on March 24, 2016, as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All full-time and part-time armed and unarmed security officers, including direct care and youth workers per- forming guard duties as defined in Section 9(b)(3) of the Act, employed by the Employer at its facilities lo- cated at 300 Glendale and 1961 Lincoln, Highland Park, Michigan, but excluding all office clerical em- ployees, professional employees and supervisors as de- fined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain At all material times, Melissa Fernandez has been a supervisor of the Respondent within the meaning of Sec- tion 2(11) of the Act and an agent of the Respondent within the meaning of Section 2(13) of the Act. About March 31 and July 1, 2016, the Union, by let- ters, requested that the Respondent recognize and bargain collectively with the Union as the exclusive collective- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 bargaining representative of the unit. Since about March 31, 2016, the Respondent has failed and refused to do so. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since March 31, 2016, to rec- ognize and bargain with the Union as the exclusive col- lective-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 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 initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Spectrum Juvenile Justice Services, High- land Park, Michigan, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with International Union, Security, Police and Fire Profes- sionals of America (SPFPA) as the exclusive collective- 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 exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and part-time armed and unarmed security officers, including direct care and youth workers per- forming guard duties as defined in Section 9(b)(3) of the Act, employed by the Employer at its facilities lo- cated at 300 Glendale and 1961 Lincoln, Highland Park, Michigan, but excluding all office clerical em- ployees, professional employees and supervisors as de- fined by the Act. (b) Within 14 days after service by the Region, post at its facility in Highland Park, Michigan, copies of the attached notice marked "Appendix."1 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since March 31, 2016. (c) Within 21 days after service by the Region, file with the Regional Director for Region 7 a sworn certification of a responsible official on a form provided by the Re- gion attesting to the steps that the Respondent has taken to comply Dated, Washington, D.C. November 22, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Philip A. Miscimarra Member ______________________________________ 1 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.” SPECTRUM JUVENILE JUSTICE SERVICES 3 Lauren McFerran, 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 Fed- eral labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with International Union, Security, Police and Fire Pro- fessionals of America (SPFPA) as the exclusive collec- tive-bargaining 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 exercise of the rights listed above. 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 fol- lowing appropriate bargaining unit: All full-time and part-time armed and unarmed security officers, including direct care and youth workers per- forming guard duties as defined in Section 9(b)(3) of the Act, employed by the Employer at its facilities lo- cated at 300 Glendale and 1961 Lincoln, Highland Park, Michigan, but excluding all office clerical em- ployees, professional employees and supervisors as de- fined by the Act. SPECTRUM JUVENILE JUSTICE SERVICES The Board’s decision can be found at www.nlrb.gov/case/07–CA–180451 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.