Children's Baptist Home of Southern California

National Labor Relations Board - Board Decisions

Dec 5, 1974

215 N.L.R.B. 306 (N.L.R.B. 1974)

I
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Children's Baptist Home of Southern California and
American Federation of State, County & Municipal
Employees, AFL-CIO, Council 36, Petitioner. Case
31-RC-2618
December 5, 1974
DECISION AND ORDER DIRECTING
HEARING
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
This case comes before the Board on exceptions and
amended exceptions to the Regional Director's Report
on Objections, filed by the Employer on April 22 and
June 18, 1974, respectively, and on a motion' for recon-
sideration, filed by the Employer on June 20, 1974. The
exceptions contend that the Regional Director erred in
failing to sustain the Employer's objections and set
aside the election, and the amended exceptions and the
Motion for Reconsideration contest the Acting Re-
gional Director's decision to assert jurisdiction over the
Employer and direct the. election in the first place. The
procedural facts of the case, briefly, are as follows:
On November 2, 1973, the Petitioner filed a petition
in this case, and on November 29, 1973, the
Intervenor' filed a motion to intervene. On December
3, 1973, a hearing was held limited to the question of
whether the Board should assert its discretionary juris-
diction over the Employer; the Employer strongly
urged that under the Board's then-existing case law, it
should not. The Employer's main argument was that
the Board's decisions to assert jurisdiction over the
employers in Jewish Orphan's Home of Southern Cali-
fornia a/k/a Vista Del Mar Child Care Service, 191
NLRB 32 (1971), and The Children's Village, Inc., 186
NLRB 953 (1970), were inapplicable here-first, be-
cause the Board there explicitly declined to set perma-
nent jurisdictional standards for child care centers, and
second, because the Employer's volume of interstate
business is significantly less than that of the employers
in those cases.
On December 28, 1973, the Acting Regional Direc-
tor for Region 31 issued a Decision and Direction of
Election specifically concluding, after a thorough dis-
cussion of the evidence adduced at the hearing, that the
Employer's operations here were sufficiently similar to
those of the employers in Jewish Orphan's Home and
Children's Village to warrant assertion of the Board's
jurisdiction., The Employer did not request review of
that Decision.
I The Intervenor is Service & Hospital Workers, Local 399,
AFL-CIO.
215 NLRB No. 45
Thereafter, an election by secret ballot was con-
ducted on January 23, 1974, among the employees in
the units found appropriate. The tally of ballots showed
that of the approximately 58 eligible voters in voting
groups A and B,2 51 valid ballots were cast, of which
34 were for the Petitioner, 1 was for the Intervenor, and
15 were against representation by either labor organiza-
tion; and that, of the approximately 8 eligible voters in
voting group C, 6 valid ballots were cast, of which 1
was for, and 5 were against, the Petitioner.
On January 30, 1974, the Employer filed a number
of timely objections to conduct affecting the results of
the election.'
Pursuant to the Board's Rules and Regulations, Ser-
ies, 8, as amended, the Regional Director conducted an
investigation of the Employer's objections and, on
April 9, 1974, issued and served on the parties a report
on objections and order directing hearing. In that re-
port, the Regional Director recommended that the
Board overrule Objections l,c and 1, d(2) and order a
hearing for the purpose of obtaining evidence bearing
on the issues raised by Objection 1, d(1). Thereafter, on
April 22, 1974, the Employer filed exceptions to the
Regional Director's report and a brief in support
thereof.
In the meantime, on April 16, 1974, the Petitioner,
also called AFSCME, filed with the Regional Director
unfair labor practice charges alleging that the Em-
ployer had committed a series of unfair labor practices
including the discharge of 13 employees on April 9,
1974, allegedly because they had engaged in protected
concerted activities during the election campaign. On
May 21, 1974, the Regional Director issued a com-
plaint based on the unfair labor practice charges filed
against the Employer.4
While the matter was pending before the Board on
the Employer's exceptions to the Regional Director's
report, the Board (Member Fanning dissenting), on
May 24, 1974, issued its decision in Ming Quong Chil-
dren's Center, 210 NLRB 899, explicitly overruling its
prior decisions in Jewish Orphan's Home and Chil-
2 The three voting groups were: (A) all child care workers, clinic attend-
ants, drivers, laundry and maintenance staff, night watchmen, cooks, dish-
washers, recreation leaders , teaching assistants , and ceramic instructors;
(B) all social workers; and (C) all office clerical workers. The employees in
group B voted to be included with those in group A. The Intervenor did not
participate in group C's voting.
3 Objection l,c alleged that the Petitioner had made a material misre-
presentation by implying that it never required employees to obtain union
membership; Objection 1,d(1) alleged that the Petitioner had made a
material misrepresentation by claiming to have had a 3-year collective-
bargaining contract with Jewish Orphan's Home; and Objection l,d(2) al-
leged that the Petitioner had made a material misrepresentation by claiming
to have won certain wage increases in its current negotiations for a new
collective-bargaining contract with Jewish Orphan's Home. The remaining
objections-l,a; l,b; and 2-were withdrawn by the Employer with the
Regional Director's approval.
4 The unfair labor practice complaint is the subject of Case
31-CA-4402, a companion case to the present one.
CHILDREN'S BAPTIST HOME
dren's Village, supra and announcing that, in the area
of resident care centers for emotionally disturbed chil-
dren, it would no longer assert its jurisdiction "over
this type of nonprofit institution whose activities are
noncommercial in nature and are intimately connected
with the charitable purposes of the institution.' Some
time thereafter, on June 18 and 20, 1974, the Employer
filed with the Board amended exceptions to the Re-
gional Director's Report on Objections, and a motion
for reconsideration, contending that the Board's new
position in Ming Quong was controlling in the present
case, and that the Board, therefore, should decline to
assert jurisdiction here.'
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.
The Board has duly considered the Employer's ob-
jections, the Regional Director's Report on Objections,
and the Employer's exceptions and brief, amended ex-
ceptions, and motion for reconsideration, and has con-
cluded that jurisdiction should be asserted over the
Employer. The Board has furthermore concluded that
the issues raised by the Employer's Objections 1, d(1)
and (2)7 can best be resolved by a hearing.
Our decision to assert the Board's discretionary ju-
risdiction here is premised on the particular procedural
facts set forth above, and is compelled, we believe, by
two considerations essential to the effective and equita-
ble enforcement of the Act. First, the Employer failed
to file a timely request for review by the Board of the
Regional Director's Decision and Direction of Election
as required by Section 102.67 of the Board's Rules and
Regulations. Indeed, the Employer's request for review
of the Region's initial assertion of jurisdiction was filed
almost half a year after issuance of the Direction of
Election-clearly beyond the time limits imposed upon
such requests for review by Section 102.67 • of the
Board's Rules and Regulations, Series 8, as amended.
Nor did the Employer, in its exceptions to the Regional
Director's report on objections, filed on April 22,.a 1974,
raise the issue of jurisdiction.
In these circumstances, to suspend the ordinary
procedural requirements of the Board's Rules and
5 In the nature of its services and its impact on commerce, the Employer
here would appear to be comparable to that in Ming Quong. However, in
view of our disposition of the case, infra we deem it unnecessary to decide
whether Ming Quong would be controlling in circumstances not present
here.
6 Additionally, the Employer, relying on Ming Quong, filed a motion to
dismiss the unfair labor practices complaint. On July 2, 1974, presiding west
coast Administrative Law Judge James T. Barker issued an Order granting
the Employer's motion to dismiss on the basis of Ming Quong. General
Counsel subsequently filed a request for review of the Administrative Law
Judge's Order, and that request forms the subject of our Decision in the
companion Case 31-CA-4402, issued this day, 215 NLRB No. 44.
r The Board does not now pass on the Regional Director's recommenda-
tion that Employer's Objection 1,c be overruled.
307
Regulations would be unnecessarily and unwisely to
undermine the Board's efforts to guarantee that all
cases be processed with maximum efficiency and equity
for all parties concerned.
The second consideration which compels, we believe,
our decision to assert the Board's jurisdiction over the
Employer is, as more fully set forth in the companion
unfair labor practice case issued this day, 215 NLRB
No. 44 (Case 31-CA-4402), the need to protect the
statutory rights of employees who allegedly engaged, to
their detriment, in protected concerted activities in reli-
ance upon the Region 's assertion of jurisdiction here.
-The record indicates that shortly after the Region's
assertion of jurisdiction, the Petitioner announced to
the employees that the Board had asserted jurisdiction
over the Employer and that they would enjoy the pro-
tections of the Act if they engaged in concerted activi-
ties in support of the Union. Thereafter, a majority of
the unit employees having voted for the Petitioner, the
Employer on April 9, 1974, allegedly discharged 13
employees for their prounion activities. In these cir-
cumstances, for the Board to withdraw its jurisdiction
now would have two unfortunate and unfair conse-
quences: first, it would leave the employees open to
alleged employer retaliation which they had justifiably
believed would not result from their protected con-
certed activities; and, second, it would deprive the em-
ployees of the fruits of union representation and collec-
tive bargaining which they had justifiably believed
would result from their protected concerted activities.
This we decline to do.8
Accordingly' we shall assert jurisdiction over the
Employer here and order that a hearing be held to
resolve the issues raised by the Employer's Objections
1, d(1) and (2).
ORDER
It is hereby ordered that a hearing be held before a
duly designated Hearing Officer for the purpose of re-
ceiving evidence to resolve the issues raised by Em-
ployer's Objection 1, d(l) and (2), namely whether the
Petitioner made material misrepresentations in claim-
ing to have had a 3-year contract with the Vista Del
Mar home and to have secured specified wage increases
in its current negotiations with that home, and to ad-
8 Finally, it must be stressed that out decision in Ming Quong, supra,
involved the Board's discretionary, rather than legal, jurisdictional stand-
ards. In any event, the issue of such discretionary standards with respect to
child care institutions is not altogether clear at this time and may well have
to be reassessed in light of the recently enacted amendments to the Act,
93-PL-390. See Beverly Farm Foundation Incorporated, 215 NLRB No. 73
(Cases 14-CA-7893 and 14-RC-7687). For the reasons indicated herein,
we think that the purposes of the Act will best be served here by exercising
our discretion to assert jurisdiction over the representation dispute here.
Member Fanning agrees that jurisdiction should be asserted here for the
reasons stated . Additionally, however, he would assert jurisdiction here for
the reasons stated in his dissent in Ming Quong, supra
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duce such other evidence as is relevant to the issues
raised by Employer's Objections 1, d(1) and (2).
IT IS FURTHER ORDERED that the Hearing Officer desig-
nated for the purpose of conducting such hearing shall
prepare and cause to be served on the parties a report
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board as
to-the disposition of said Objections. Within 10 days
from the date of issuance of such report, any party may
file with the Board in Washington, D.C., eight copies
of exceptions thereto. Immediately upon the filing of
such exceptions, the party filing the same shall serve a
copy thereof on the other parties and shall file a copy
with the Regional Director. If no exceptions are filed
thereto, the Board will adopt the recommendations of
the Hearing Officer.
IT IS FURTHER ORDERED that the above-entitled matter
be, and it hereby is, referred to the Regional Director
for Region 31 for the purpose of conducting such hear-
ing, and that the Regional Director be, and he hereby
is, authorized to issue notice thereof.