Chicago Youth Centers

National Labor Relations Board - Board Decisions

Mar 8, 1979

240 N.L.R.B. 1272 (N.L.R.B. 1979)

1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chicago Youth Centers and Local 372, Service Em-
ployees International Union, AFL-CIO. Case 13
CA 17971
March 8, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
Upon a charge filed on August 22, 1978, by Local
372, Service Employees International Union, AFL-
CIO, herein called the Union, and duly served on
Chicago Youth Centers, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Regional Director for Region 13. is-
sued a complaint and notice of hearing on September
26, 1978, against Respondent, alleging that Respon-
dent had engaged in and was engaging in unfair la-
bor practices affecting commerce within the meaning
of Section 8(a)(5) and (1) and Section 2(6) and (7) of
the National Labor Relations Act, as amended. Cop-
ies of the charge and 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 com-
plaint alleges in substance that on May 16, 1978, fol-
lowing a Board election in Case 13-RC-13636, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate; and that, commenc-
ing on or about August 15, 1978, and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested and is requesting it to do so.
On October 10, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint, and on October 23,
1978, Respondent filed an amended answer to the
complaint, approved by the Regional Director for
Region 13 on October 27, 1978, setting forth certain
affirmative defenses.
On November 8, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 29,
1978, the Board issued an order transferring the pro-
'Official notice is taken of the record in the representation proceeding.
Case 13-RC-13636, 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
LTV Elecirosystems. Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th
('ir. 1968); Golden Age Beverage (o., 167 NLRB 151 (1967). enfd. 415 F.2d
26 (5th Cir. 1969). Intertrpe (o. v Penello. 269 F.Supp. 573 (D.C.Va., 1967):
Follerr Corp. 164 NL.RB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA. as amended.
240 NLRB No. 173
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relationa 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 answers to the complaint and to the Notice
To Show Cause, Respondent admits that it did not
schedule a meeting in response to a telegraphic re-
quest from the Union to meet for the purposes of
negotiating a collective-bargaining agreement, but in
effect denies that it thereby violated Section 8(a)(5)
and (1) of the Act. By way of affirmative defenses,
Respondent attacks the Union's certification con-
tending that it is exempt from the Board's jurisdic-
tion, and that the Board's June 4, 1976, Order Grant-
ing Petition for Reconsideration and Reopening the
Record in Case 13 RC 13636 contravened Section
9(c)( 1) of the Act in that no petition for certification
was then pending. Further, Respondent asserts that
the same order violated Section 102.65(e) of the
Board's Rules and Regulations in that no newly dis-
covered or previously unavailable evidence was al-
leged or found to have existed and also violated Sec-
tion 555(b) of the Administrative Procedure Act
(APA) requiring a prompt resolution of administra-
tive proceedings. Finally, Respondent alleges that the
Board failed to rule on its October 21, 1977, motion
to vacate and rescind order granting petition for re-
consideration and remanding for hearing; that our
April 12, 1978, Decision, Order, and Direction of
Elections is not supported by subatantial evidence in
the record as a whole and issued without review of
the full record in Case 13-RC-13636: that Petitioner
did not promptly or timely demand bargaining; and
that the May 16, 1978, Certification of Representa-
tive was issued to a labor organization other than the
Petitioner in Case 13 RC 13636.
Our review of the record, including that in Case
13-RC-13636, reveals that Respondent requested re-
view of the Regional Director's May 29, 1975, Deci-
sion and Direction of Election issued pursuant to a
petition for representation filed on February 10,
1975. On December 15, 1975, the Board issued a De-
cision on Review and Order dismissing the petition
in Case 13-RC-13636. Thereafter, on June 4, 1976,
the Board granted the Petitioner's motion for recon-
sideration and petition to reopen the record and re-
CHICAGO YOUTH CENTERS 1273
mand for hearing. In its June 4 Order, the Board
referred to Local 372 as the successor to Local 329.
the initial Petitioner.
On April 12, 1978, following the second hearing,
the Board considered all the evidence introduced at
the September 27, 1977, hearing and issued a Deci-
sion, Order, and Direction of Elections in Case 13
RC-13636.2 In that Decision, the issue of jurisdiction
was fully litigated, and footnote I indicates that the
Petitioner's name appears as amended at the hearing.
Footnote 3 of that Decision discusses whether Sec-
tion 9(c)(1) of the Act and Section 102.65(e) of the
Board's Rules and Regulations were contravened)
Following an election on May 8, 1978, in which a
majority of valid votes were cast for the Union, a
Certification of Representative in Case 13-RC-
13636 issued on May 16, 1978.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.4
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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 proper-
ly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FA(T
1. IIE BUSINESS OF RSPONDENI
Respondent Chicago Youth Centers is an Illinois
nonprofit corporation providing various community
-The issuance of that Decision impliedl, denied Respondent's October
21, 1977, motion to vacate and rescind the order granting petition for recon-
sideration and remanding for hearing. In ans esenl. it is denied
These contentions. and the allegation that Sec. 555b) of the Administra-
tive Procedure Act was violated. were addressed in ( hcag,, Youtrrh ( 'enier
National abor Relations Board. No. 76 C 2284. Jul' IR. 1977. h Senior
United States District Judge Hoffman for he Northern District of Illinois.
Eastern Division, who dismissed the complaint on the merit. With respect to
the latter issue, we note that some delays occurred due to Petitioner's proper
utilization of the Board's procedures and that Respondent has not demon-
strated that it has been prejudiced b> the delass.
4See Pittsbhurgh Plate (;las, (o. v. N L R B. 313 S. 146, 162 (1941)
Rules and Regulations of the Board. Secs 102 67(i and 102.69(c)
service programs, including individual and family
counseling, crisis intervention. youth action. social
rehabilitation, and Head Start. During a representa-
tive 12-month period, Respondent's gross annual rev-
enue exceeded $2 million, and it purchased goods
and services worth approximately $77,000 from out-
side the State of Illinois.
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 juris-
diction herein.
II 11 H I.ABOR ORGANIZA[ION INVOI.VED
Local 372, Service Employees International
Union, AFL-CIO. is a labor organization within the
meaning of Section 2(5) of the Act.
Ill TIlE UNIFAIR LABOR PRA('I'I(.S
A. The Representation Proceeding
1. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All child care employees including social
workers, social worker's aides (also called case
aides), child development workers 1. 11, I111.
teachers, assistant teachers, food aides. cooks
and assistant cooks, employed by the Employer
at its Lower North, Green Homes, Altgeld-Mur-
ray, and George E. Taylor Head Start Centers in
Chicago, Illinois: but excluding office clerical
employees, site directors, program coordinators,
guards, and supervisors as defined in the Act.
2. The certification
On May 8. 1978, a majority of the professional
employees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 13, indicated their
desire to be included in a unit with nonprofessionals,
and a majority of the employees in the unit described
above designated the Union as their representative
for the purpose of collective bargaining with Respon-
dent. The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on May 16, 1978, and the Union continues to be such
exclusive representative within the meaning of Sec-
tion 9(a) of the Act.
CHICAGO YOUTH CENTERS
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Request To Bargain and Respondent's Refusal
Commencing on or about August 15, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about August 15, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
August 18, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit and that, by such refusal, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (I) of the
Act.
IV. ItF :F:::1.('1' O:F 111 UNFAIR L.AIOR PRA('TI('[(S :P()ON
COMMER CE
The activities of Respondent Chicago Youth Cen-
ters set forth in section III, above, occurring in con-
nection with its operations described in section 1,
above, have a close, intimate, and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow
of commerce.
V. THE RMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () 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 ap-
propriate unit and, if an understanding is reached.
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the servcies of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultrv Companv, nc., 136
NLRB 785 (1962); Commerce Company d/h/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:
CONC LUSIONS OF LAW
I. Chicago Youth Centers is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local 372, Service Employees International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All child care employees, including social work-
ers, social worker's aides (also called case aides),
child development workers I, II, III, teachers, assis-
tant teachers, food aides, cooks, and assistant cooks,
employed by the Employer at its Lower North,
Green Homes, Altgeld-Murray, and George E. Tay-
lor Head Start Centers in Chicago, Illinois: but ex-
cluding office clerical employees, site directors, pro-
gram coordinators, guards, and supervisors as
defined in the Act, constitute a unit appropriate for
the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.
4. Since May 16. 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 15, 1978, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed them in Sec-
tion 7 of the Act, and thereby has engaged 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 mean-
ing 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-
lationa Board hereby orders that the Respondent,
Chicago Youth Centers, Chicago, Illinois, its officers,
agents, successors, and assigns, shall:
CHICAGO YOUTH CENTERS 1275
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages. hours. and other terms and con-
ditions of employment with Local 372, Service Em-
ployees International Union, AFL-CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All child care employees including social
workers, social worker's aides (also called case
aides), child development workers I, II. Ill.
teachers, assistant teachers. food aides, cooks
and assistant cooks, employed by the Employer
at its Lower North, Green Homes, Altgeld-MuLr-
ray, and George E. Taylor Head Start Centers in
Chicago, Illinois; but excluding office clerical
employees, site directors, program coordinators.
guards. and supervisors as defined in the Act.
(b) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Lower North, Green Homes, Alt-
geld-Murray, and George E. Taylor facilities copies
of the attached notice marked "Appendix." Copies
provided by the Regional Director for Region 13.
after being duly signed by Respondent's representa-
tive, 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 notice to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MtF M BRS P riF .o and Mt RPity, dissenting:
We would not grant the General Counsel's Motion
for Summary Judgment for the reasons stated in our
dissenting opinions in the underlying representation
case, (Chicago Youth Centers, 235 NLRB 915 (1978).
In Ihe e',enl thai his Order is enforced hb .ajudgeniet of It Inited Sta.tes
(Court of Appeals. the words n the notice reading "Posted hb Order of the
Natlonlll I habor Relatloln Boalrd" shall read Posted Pursuant to a Judg-
menlt of the nited Stite. ( urt of Appealls Inforcing n Order of the
National I ahotr Relation Brd"
APPENDIX
NOTICE TO EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RATIONS BOARD
An Agency of the United States Government
WE WIIL NOT refuse to bargain collectively concern-
ing rates of pay. wages, hours, and other terms and
conditions of employment with Local 372, Service
Employees International Union. AFL-CIO, as the ex-
clusive representative of the employees in the bargain-
ing unit described below.
WE wILL NOi in any like or related manner interfere
with, restrain, or coerce our employees 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 representative of all
employees in the bargaining unit described below.
with respect to rates of pay, wages, hours. and other
terms and conditions of employment, and, if an un-
derstanding is reachedi. embody such understanding in
a signed agreement. The bargaining unit is:
All child care employees including social workers,
social worker's aides (also called case aides), child
development workers I., II, III, teachers. assistant
teachers, food aides, cooks and assistant cooks, em-
ployed by the Employer at its Lower North, Green
Homes, Altgeld-Murray, and George E. Taylor
Head Start Centers in Chicago. Illinois; but exclud-
ing office clerical employees, site directors, program
coordinators, guards, and supervisors as defined in
the Act.
CHIAc;o YOt: 1H CENTERS
CHCAGO Y UTH CENTERS