Children's Baptist Home of Southern California

National Labor Relations Board - Board Decisions

Dec 5, 1974

215 N.L.R.B. 303 (N.L.R.B. 1974)

CHILDREN'S BAPTIST HOME 303
Children's Baptist Home of Southern California and
American Federation of State , County and Munici-
pal Employees, AFL-CIO, Council 36. Case
31-CA-4402
December 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENEL.LO
This case comes before the Board on the General
Counsel's request for review of Administrative Law
Judge James T. Barker's Order granting Respondent's
motion to dismiss the unfair labor practice complaint
in its entirety. The facts of the case, stated briefly, are
as follows:
Background
On November 2, 1973, the Union, which is the
Charging Party herein, filed a petition in related Case
31-RC-2618. Following a hearing held on December
3, 1973, to determine whether the Board should assert
its discretionary jurisdiction over the Employer, the
Acting Regional Director for Region 31, on December
28, 1973, issued a Decision and Direction of Election
in which he concluded that the Employer's operations
were sufficiently similar to those involved in Jewish
Orphan's Home' and Children's Village' to warrant
assertion of the Board's discretionary jurisdiction. No
request for review was filed by Respondent.
An election by secret ballot was thereafter conducted
on January 23, 1974. The tally of ballots showed that
the Union received a majority of the votes cast in the
election in voting groups A and B, but did not receive
a majority in voting group C.
On January 30, 1974, the Employer filed a number
of timely objections to the election and, following an
investigation, the Regional Directof, on April 9; 1974,
issued and served on the parties his report on objec-
tions, in which he recommended that the Board over-
rule two of the Employer's objections and send the
third to hearing. On April 22, 1974, the Employer filed
exceptions to the Regional Director's report and sup-
porting brief.
In the meantime, on April 16, 1974, the Union filed
the instant unfair labor practice charges alleging, inter
alia, that Respondent had unlawfully discharged 13 of
its employees on April 9, 1974. On May 21, 1974, the
Regional Director issued a complaint and notice of
I Jewish Orphan's Home ofSouthern California a/k/a Vista de Mar Child
Care Service, 191 NLRB 32 (1971).
2 The Children's Village, Inc., 186 NLRB 953 (1970).
hearing on the basis of his investigation of the unfair
labor practice charges.
Thereafter, on May 24, 1974, the Board issued its
decision in Ming Quong Children's Center, 210 NLRB
899 (1974), expressly overruling its prior decisions in
Jewish Orphan's Home and Children's Village, supra,
and announcing that, in the area of resident care cen-
ters for emotionally disturbed children, it would no
longer assert its jurisdiction "over this type ofnonprofit
institution whose activities are noncommercial in na-
ture and are intimately connected with the charitable
purposes of the institution." Subsequently, on June 17,
1974, the Respondent filed with the Division of Ad-
ministrative Law Judges a motion to dismiss the unfair
labor practice complaint, contending that the Board's
new position in Ming Quong was controlling in the
present case, and that the Board should therefore de-
cline to assert jurisdiction here.' On July 2, 1974, pre-
siding West Coast Administrative Law Judge James T.
Barker issued an order granting the Employer's motion
to dismiss and, on July 12, 1974, the General Counsel
filed with the Board a request for review of that order,
in which the Union joined. Respondent thereafter filed
a brief in opposition to the request for review.
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 mo-
tion to dismiss, the Administrative Law Judge's order
granting said motion, the General Counsel's request for
review, and Respondent's opposition thereto, and has
decided to grant the request for review and to remand
the proceeding for a hearing on the merits.4
In his request for review of the Administrative Law
Judge's ruling, the General Counsel argues that: the
Board, by its Regional Director's decision asserting
jurisdiction over the Employer, assured the employees
that their union activities , would be protected; the
Union also, gave similar assurance to the employees on
the basis of the Regional Director's decision; the em-
ployees , acting in reliance on such assurances , engaged
in union activities and, in the election conducted on
January 23, 1974, selected the Union as their bargain-
ing representative; the Employer, on April 9, 1974,
discharged 13 of these employees allegedly because of
their union activities; and that, therefore, it would be
3 Additionally, the Employer filed with the Board amended exceptions to
the report on objections, and a motion for reconsideration, in Case
31-RC-2618, contending that the petition must be dismissed on the basis
of the Board's ruling in Ming Quong. That motion is considered and denied
in the companion case, Children's Baptist Home ofSouthern Californi4 215
NLRB No. 45, issued this day.
' Respondent's request for permission to argue orally before the Board is
hereby denied because, in our view, the contentions of the parties are ade-
quately set forth in General Counsel's request for review and in Respon-
dent's brief in opposition thereto.
215 NLRB No. 44
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unconscionable for the Board now to turn its back on
these employees by declining to afford them the protec-
tions of the Act which the Board led them to believe
they enjoyed. We find merit in this argument.
Our decision to assert jurisdiction here is premised
on the particular facts set forth above, and is com-
pelled, we believe, by two considerations essential to
the effective and equitable enforcement of the Act. The
first consideration for asserting jurisdiction is more
fully discussed in our companion opinion issued this
day involving the representation case, 215 NLRB No.
45 (31-RC-2618). There, we decided to affirm the Re-
gional Director's assertion of jurisdiction because, inter
aliq the Employer had failed to file a timely request for
review as required by Section 102.67 of the Board's
Rules and Regulations , Series 8, as amended.
The second consideration which compels us to assert
the Board's jurisdiction over the Employer is the need
to protect the statutory rights of employees who al-
legedly engaged, to their detriment, in protected con-
certed activities in reliance on the Regional Director's
decision asserting jurisdiction over the Employer in the
representation proceeding. The Union clearly an-
nounced to the employees that their activities on behalf
of the Union would be protected by the Board. Thus,
for example, the Petitioner, by a leaflet dated January
10, 1974, notified the employees that "On December
28, 1973, the NLRB rendered a decision in the matter
of Children's Baptist Home. . . the result [of which] is
that the NLRB has taken jurisdiction and has ordered
an election to be conducted at Children's Baptist Home
among the employees as to whether or not they desire
to have AFSCME represent them;" and, by a leaflet
dated January 21, 1974, added, "Several of you were
threatened with termination or layoff because the man-
agement thought you participated in showing your
sympathies for your fellow-employees-Federal law
forbids the management of Children's Baptist to engage
in scare tactics or threatening [sic] you in any manner
in an attempt to keep you from voting for the Union."
As stated, a majority of the unit employees thereafter
voted for the Petitioner and, on April 9, 1974, the
Employer discharged 13 of them allegedly for their
prounion activities. Therefore, for the Board to with-
draw its jurisdiction at this late date would have the
unfortunate consequence of leaving the employees un-
protected by the Act from alleged Employer retaliation
for engaging in what they justifiably believed were pro-
tected concerted activities.
In Eugen Pedersen v. N.L.R.B.,5 the Court of Ap-
peals for the Second Circuit reversed the Board's dis-
missal of an 8(a)(4) complaint. There, an employee was
discharged after he had given testimony adverse to his
employer's interests, pursuant to a Board subpena, in
5 234 F.2d 417 ( 1956), reversing and remanding 110 NLRB 1305.
a Board proceeding . After the Trial Examiner had
found the discharge violative of Section 8(a)(4) of the
Act, but before the Board 's review on the merits, the
Board tightened its jurisdictional standards , which ex-
cluded coverage of the employer . On the basis of these
stricter jurisdictional standards , the Board dismissed
the 8 (a)(4) complaint . The circuit court of appeals, in
reversing the Board ' s dismissal and remanding the
matter , quoted from Board Member Murdock's dis-
sent:
Having placed [the employee] in the position of
opposing the interests of his employer, the Board
cannot in good conscience leave him to the ungen-
tle "mercy" of that employer, merely because in
the interim 'the Board has changed its jurisdic-
tional policies so as to exclude the Respondent.
Respondent contends that Pedersen is distinguisha-
ble because there, unlike here, a Trial Examiner's Deci-
sion had already issued, finding an 8(a)(4) violation,
before the Board altered its jurisdictional standards,
and, more significantly, because that case involved an
overriding policy "to protect the efficacy of the Board's
processes by protecting employees who testify in Board
proceedings from retaliation by an employer." More in
point, the Respondent argues, is Robert Scrivener,'
d/b/a AA Electric Co., where the Board asserted juris-
diction over the employer with respect to an alleged
8(a)(4) violation, but declined to assert jurisdiction
with respect to the alleged 8(a)(1), (3), and (5) viola-
tions of the complaint on the grounds that the employer
did not meet the Board's jurisdictional standards.
While we agree that in the Scrivener case, the Board
distinguished between alleged 8(a)(4) violations and vi-
olations of other sections of the Act, we question the
validity of that distinction. For, once the Board assures
employees that their union or concerted activities are
protected by the Act, we feel it is highly inequitable to
the employees who rely on such assurance to their
alleged detriment, thereafter to decline to protect them
from an employer's alleged retaliatory actions.'
6 177 NLRB 504 (1969).
7 See also John Almeida, Jr., d/b/a Almeida Bus Service, and Almeida Bus
Lines, Inc., 99 NLRB 498 (1952), where, after being assured by a field
examiner that the Board would not assert jurisdiction in a representation
case, the employer denied reinstatement to unfair labor practice strikers.
The Board refused to apply subsequently relaxed jurisdictional standards to
the Employer's actions retroactively, stating, 99 NLRB at 501, a "broad
principle" of reluctance to impose statutory sanctions against a party for
conduct committed "after advice and notice from the Board that its conduct
would not be actionable ...... Here, the argument against retroactively
applying changed jurisdictional standards is even stronger, first, because
here, the Board's "advice and notice" relied on was not a Field Examiner's
informal statement but the Acting Regional Director's official Direction of
Election; and second, because the Act's ultimate purpose is not to protect
employers from findings against them of unfair labor practices, but to pro-
tect employees from retaliatory actions of employers for engaging in pro-
tected, concerted activities.
CHILDREN'S BAPTIST HOME
Therefore, to the extent that our decision here conflicts
with Scrivener, the latter is reversed!
Accordingly, we shall assert jurisdiction over the
Employer, vacate the Administrative Law Judge's or-
der granting motion to dismiss , and remand this case
to the Regional Director for the purpose of scheduling
a hearing on the merits of the complaint before a duly
designated Administrative Law Judge, and for the pur-
pose of giving due notice of such hearing to the parties.
ORDER
It is hereby ordered that the General Counsel's re-
quest for review of the Administrative Law Judge's
305
order granting motion to dismiss be , and it hereby is,
granted.
IT IS FURTHER ORDERED that a hearing be conducted
before a duly designated Administrative Law Judge for
the purpose of litigating the issues raised by the com-
plaint, in accordance with Sections 102.34 through
102.47, inclusive , of the National Labor Relations
'Board 's Rules and Regulations, Series 8 , as amended.
IT IS FURTHER ORDERED that this proceeding be, and it
hereby is , remanded to the Regional Director for Re-
gion 31 for the purpose of arranging such hearing, and
that the said Regional Director be, and he hereby is,
authorized to issue notice thereof.
8 Member Fanning agrees that jurisdiction should be asserted for the
reasons stated here . However, he would rely additionally on the reasons set
forth in his Ming Quong dissent.