Living & Learning Centers, Inc.

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Living and Learning Centers, Inc. and Local 925, Service Employees International Union, AFL- CIO-CLC. Case -CA-16358 August 18, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on April 7, 1980, by Local 925, Service Employees International Union, AFL- CIO-CLC, herein called the Union, and duly served on Living and Learning Centers, Inc., herein called Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 1, issued a complaint and notice of hearing on April 28, 1980, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Na- tional Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on February 12, 1980, following a Board election in Case 1-RC- 16408, the Union was duly certified as the exclu- sive collective-bargaining representative of Re- spondent's employees in the unit found appropri- ate;' and that, commencing on or about February 27, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bar- gain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On April 30, 1980, Respondent filed its answer to the com- plaint admitting in part, and denying in part, the al- legations in the complaint. On May 30, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 19, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. t Official notice is taken of the record in the representation proceed- ing, Case -RC-16408, as the term "record" is defined in Secs. 102 68 and 102 69 (g) of the Board's Rules and Regulations, Series 8, as amended See LIV lecirosyvterns, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1968); Golden .4ge Beverage Co.. 167 NLRB 151 (1967), enfd 415 F.2d 26 (5th Cir. 1969); Inerlype Co. v Penlllo, 269 F.Supp 573 (D.C.Va. 1967); Foblltt Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec 9(d) of the NL.RA, as amended 251 NLRB No. 41 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint, Respondent ad- mitted that it had gross annual income in excess of $250,000, but it denied the allegations that it annu- ally shipped and received goods valued in excess of $2,000 to or from points outside the Common- wealth of Massachusetts, and that it was engaged in commerce within the meaning of the Act. At the hearing in the underlying representation proceed- ing, Respondent stipulated it annually shipped or received goods within the Commonwealth of Mas- sachusetts having a value in excess of $2,000 to or from points outside the Commonwealth of Massa- chusetts. In his Decision and Direction of Election, the Regional Director found, based upon the facts above, that Respondent was engaged in commerce within the meaning of the Act. Respondent did not request review of this portion of the Regional Di- rector's decision. Respondent's answer does not allege that any newly discovered or previously un- known evidence has been uncovered since the prior proceeding. Respondent neither admitted nor denied that the Union was a labor organization, and stated that it was without knowledge. The Regional Director, in his decision, found that the Union was a labor or- ganization within the meaning of Section 2(5) of the Act, thus providing Respondent with such knowledge, and Respondent did not request review of the Regional Director's determination of this issue. Respondent also denied that a unit of teachers, teacher assistants, cooks, and maintenance employ- ees at its Waltham, Massachusetts, child day care center was appropriate, and denied that the em- ployees designated the Union as their representa- tive for the purposes of collective bargaining. Re- spondent admitted that on February 12, 1980, the Union was certified by the Board as the majority representative of the employees in the unit. Re- spondent denied that the Union, by letter dated February 26, 1980, requested it to bargain, and also denied that it failed and refused to recognize and bargain with the Union. Respondent admitted that the Union requested certain information and that it failed and refused to furnish the Union the request- ed information. Respondent denied that the infor- mation was necessary for, and relevant to, the Union's performance of its function as the exclusive LIVING AND LEARNING CENTERS, INC. 285 bargaining agent of the unit employees. Respond- ent also denied that it violated Section 8(a)(5) and (1) of the Act. Review of the record herein, including the record in Case -RC-16408, reveals that, on August 6, 1979, following a hearing, the Regional Director issued a Decision and Direction of Elec- tion wherein, contrary to Respondent's contention, he found appropriate a unit of teachers, teacher as- sistants, cooks, and maintenance employees limited to Respondent's Waltham, Massachusetts, location, but excluding managerial employees, guards and supervisors as defined in the Act. On August 14, 1979, Respondent filed a request for review of that decision, which request was denied by the Board on August 28, 1979. On August 30, 1979, the em- ployees in the unit voted in an election for the pur- pose of selecting a collective-bargaining representa- tive. The tally of ballots shows four votes cast for the Union, one vote cast against the Union, and seven challenged ballots. The challenged ballots were sufficient to affect the results of the election. On September 6, 1979, Respondent filed timely ob- jections to conduct affecting the results of the elec- tion, alleging that the Board deliberately scheduled the election on August 30, 1979, instead of as origi- nally scheduled on September 5, 1979, in order to permit a number of employees to vote who were about to leave the employ of Respondent perma- nently. On December 20, 1979, the Regional Direc- tor issued a Supplemental Decision overruling Re- spondent's objections in their entirety. At the same time, the Regional Director recommended that four of the seven challenged ballots be opened and counted, and he sustained the challenges to the re- maining three challenged ballots. On February 1, 1980, the Regional Director tabulated the four challenged ballots and issued a revised tally of bal- lots which shows seven votes for, and two against, the Union. On February 12, 1980, the Acting Re- gional Director issued a Certification of Repre- sentative certifying the Union as the exclusive bar- gaining representative of the employees in the ap- propriate unit. The tally of ballots, the Regional Director's Supplemental Decision, the revised tally of ballots, and the Certification of Representative show that the Union was validly selected as the ex- clusive collective-bargaining representative of the employees of Respondent in the appropriate unit. In addition, any and all objections and issues con- cerning the said election raised by Respondent were fully considered and were found to be with- out merit in the Regional Director's Supplemental Decision. The Union, by letter dated February 26, 1980, requested Respondent to furnish it with informa- tion in order that it could prepare contract propos- als for negotiations. 2 Respondent, by letter dated March 11, 1980, acknowledged receipt of the Union's letter and stated it would not honor the re- quest for information because it believed the unit certified by the National Labor Relations Board was inappropriate. In its answer, as noted supra, Respondent denies that the Union requested Respondent to bargain collectively. However, the Union's letter of Febru- ary 26, 1980, requesting information is tantamount to a request for bargaining. Respondent, in its March 11, 1980, letter to the Union, states that it would not honor the Union's request for informa- tion because it was under no obligation to bargain with the Union. In those circumstances it would have been futile for the Union to follow its request for information with a literal request for bargain- ing. Respondent also denies that on or about Febru- ary 27, 1980, and at all times thereafter, it did refuse and continues to refuse to bargain collective- ly with the Union as the exclusive representative of all the employees in the unit. Respondent's April 16, 1980, letter to the Board's Regional Office, in which it stated that it refused to bargain with the Union, is sufficient evidence of the Respondent's refusal to bargain as alleged in the complaint. Respondent denies that the information requested by the Union was necessary for, and relevant to, the Union's performance of its functions as the ex- clusive bargaining representative of the employees in the appropriate unit. It is well settled that wage and employment information pertaining to bargain- ing unit employees is presumptively relevant for purposes of collective bargaining and must be pro- vided upon request to the employees' bargaining representative. 3 Respondent has not attempted to rebut the relevance of the information requested by the Union. Rather, in its March 11, 1980, letter to the Union, it stated it would not furnish the infor- 2 The information requested by the Union is as follows: The names. addresses, and telephone numbers of all employees currently in the bar- gaining unit; a list of employees by dates of hire, classification, starting pay, and current rate of pay where different from starting pay; job de- scriptions for all positions; qualifications required for all classifications. details of all benefits currently in effect for employees, including "time- off" benefits, holidays, and insurance plans; a copy of any "personnel handbook" currently in effect; descriptions of any training programs or workshops offered by Living and Learning, Inc.; a description of raise and promotional policies; details of any affirmative action plan in effect; and a listing of all state agencies and statutes which govern operations at Living and Learning, Inc., as a day care center. I Lighthouse for the Blind of Houston, 248 NLRB 1327 (1980); Verona Dyestuff Division Mobay Chemical Corporation, 233 NLRB 109. 110 (1977). Moreover, a union is not required to demonstrate the exact rel- evance of such information unless the employer has submitted evidence sufficient to rebut the presumption of relevance. Curtiss-Wright Corpora- tion. Wright Aeronautical Division v. N.LR.B,, 347 F2d 61 (3d Cir. 1965), enfg. 145 NLRB 152 (1963). 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mation requested by the Union because it believed it was under no obligation to bargain with the Union. It thus appears that Respondent is attempt- ing in this proceeding to relitigate issues fully liti- gated and finally determined in the underlying rep- resentation proceeding. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.4 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. 5 Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under, and ex- isting by virtue of, the laws of the Commonwealth of Massachusetts. At all times herein mentioned, Respondent has maintained its principal office and place of business at 764 Main Street, Waltham, Massachusetts, and is now, and continuously has been, engaged at various locations in Connecticut and Massachusetts in the operation of child day care centers. Respondent, in the course and con- duct of its operation of child day care centers, had a gross annual income in excess of $250,000, and annually shipped and received goods having a value in excess of $2,000 to or from points outside the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 4See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941); Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). ' We find no merit in Respondent's assertion in its response to the General Counsel's Motion for Summary Judgment that there are genuine issues of fact, that the General Counsel is not entitled to a judgment as a matter of law, or that the motion should be denied. II. THE LABOR ORGANIZATION INVOLVED Local 925, Service Employees International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All teachers, teacher assistants, cooks, and maintenance employees employed at Respond- ent's Waltham, Massachusetts, child's day care center, but excluding managerial employees, guards and supervisors as defined in the Act. 2. The certification On August 30, 1979, a majority of the employees of Respondent in said unit, in a secret-ballot elec- tion conducted under the supervision of the Re- gional Director for Region 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bar- gaining representative of the employees in said unit on February 12, 1980, and the Union continues to be such exclusive representative within the mean- ing of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about February 26, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit, and to furnish it with information relevant to, and neces- sary for, the the purpose of collective bargaining. Commencing on or about February 27, 1980, and continuing at all times thereafter to date, Respond- ent has refused, and continues to refuse, to recog- nize and bargain with the Union as the exclusive representative for collective bargaining of all em- ployees in said unit, and to provide it with the re- quested information. Accordingly, we find that Respondent has, since February 27, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and has refused to furnish it with in- formation relevant and necessary for the purpose ------- __ - - ___ - ___ - _ __ - __ ___ LIVING AND LEARNING CENTERS. INC 287 of collective bargaining as requested, and that, by such refusal, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement, and to provide the Union, upon request, with information relevant and necessary for collec- tive bargaining. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Living and Learning Centers, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 925, Service Employees International Union, AFL-CIO-CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. All teachers, teacher assistants, cooks, and maintenance employees employed at Respondent's Waltham, Massachusetts, child's day care center, but excluding managerial employees, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. Since February 12, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 27, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, and to provide it with requested information relevant and necessary for the purpose of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respond- ent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Living and Learning Centers, Inc., Waltham, Mas- sachusetts, its officers, agents, successors, and as- signs, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 925, Service Employees International Union, AFL-CIO-CLC, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All teachers, teacher assistants, cooks, and maintenance employees employed at Respond- ent's Waltham, Massachusetts, child's day care center, but excluding managerial employees, guards and supervisors as defined in the Act. (b) Refusing to provide to the above-named Union, upon request, information relevant and nec- essary for the purpose of collective bargaining. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement, and to provide the Union with the names, addresses, and telephone numbers of all employees in the bargaining unit; a list of employees by dates of hire, classification, starting pay, and current rates of pay where differ- ent from starting pay; job descriptions for all posi- tions; qualifications required for all classifications; details of all benefits currently in effect for employ- ees, including "time-off" benefits, holidays, and in- surance plans; a copy of any "personnel handbook" currently in effect; descriptions of any training pro- grams or workshops offered by Living and Learn- ing, Inc.; a description of raise and promotional policies; details of any affirmative action plan in effect; a listing of all state agencies and statutes which govern operations at Living and Learning, Inc., as a day care center; and any other informa- tion requested by the Union which is relevant and necessary for collective bargaining. (b) Post at its Waltham, Massachusetts, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ' In the event that 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 National Labor Relations Board" shall read "Posted Pursu- ant 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 WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local 925, Service Employees Interna- tional Union, AFL-CIO-CLC, as the exclu- sive representative of the employees in the bargaining unit described below. WE WILL NOT refuse to provide to the above-named Union, upon request, information relevant and necessary for the purpose of col- lective bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive repre- sentative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and condi- tions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All teachers, teacher assistants, cooks, and maintenance employees employed by us at our Waltham, Massachusetts, child's day care center, but excluding managerial em- ployees, guards and supervisors as defined in the Act. WE WILL provide to the Union, as request- ed, the names, addresses, and telephone num- bers of all employees in the bargaining unit; a list of employees by dates of hire, classifica- tion, starting pay, and current rates of pay where different from starting pay; job descrip- tions for all positions; qualifications required LIVING AND LEARNING CENTERS, INC 289 for all classifications; details of all benefits cur- rently in effect for employees, including "time- off" benefits, holidays, and insurance plans; a copy of any "personnel handbook" currently in effect; descriptions of any training programs or workshops offered by Living and Learning, Inc.; a description of raise and promotional policies; details of any affirmative action plan in effect; a listing of all state agencies and stat- utes which govern operations at Living and Learning, Inc., as a day care center; and any other information requested by the Union which is relevant and necessary for collective bargaining. LIVING AND LEARNING CENTERS, INC.