Children's Baptist. Home of Southern California

National Labor Relations Board - Board Decisions

Sep 20, 1976

226 N.L.R.B. 6 (N.L.R.B. 1976)

6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Children's Baptist . Home of Southern California and
American Federation of State, County, and Munici-
pal Employees, AFL-CIO, Council 36. Case 31-
CA-5994
September 20, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on March 23, 1976, by Ameri-
can Federation of State, County, and Municipal Em-
ployees, AFL-CIO, Council 36, herein called the
Union, and duly served on Children's Baptist Home
of Southern California, herein called Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
31, issued a complaint and notice of hearing on April
13, 1976, 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, 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 November 7, 1975,
following a Board election in Case 31-RC-2618 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 January 30, 1976, 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 May 7, 1976, Respondent filed its answer to the
complaint admitting in part, and denying in part, the
allegations in the complaint.
On June 7, 1976, counsel for the General Counsel
filed directly with the Board a motion for summary
judgment. On June 11, 1976, Respondent filed a mo-
tion for summary judgment and statement in opposi-
tion to General Counsel's motion for summary judg-
ment. Subsequently, on June 18, 1976, the Board
issued an order transferring the proceeding to the
Board and a notice to show cause why the General
Counsel's and/or the Respondent's motions for sum-
mary judgment should not be granted. On June 29,
1976, counsel for the General Counsel filed an oppo-
sition to Respondent's motion. Thereafter by letter
dated July 1, 1976, Respondent filed a supplement to
its motion and statement in opposition, to which
counsel for the General Counsel responded by letter
dated July 2, 1976.
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:
Rulings on the Motions for Summary Judgment
Review of the record, including the representation
proceedings in Case 31-RC-2618, establishes that,
after a hearing at which jurisdictional issues were liti-
gated, the Acting Regional Director issued a Deci-
sion and Direction of Election on December 28,
1973, finding that Respondent's operations satisfied
the Board's existing jurisdictional standards and
were sufficiently similar to those of the employers in
Jewish Orphan's Home 2 and Children's Village 3 to
warrant the assertion of jurisdiction over Respon-
dent. Respondent did not file a request for review.
On January 23, 1974, elections were held in the three
stipulated units. The Union won the election in a
unit of all employees involved herein.4 Respondent
filed timely objections to the election alleging, inter
alia, certain material misrepresentations. After an in-
vestigation, the Regional Director issued his Report
on Objections and Order Directing Hearing, recom-
mending that a hearing be held on one of Respon-
dent's material misrepresentation objections and that
the remaining objections be overruled.
Respondent filed with the Board timely exceptions
to the report and a supporting brief, in which it ba-
sically reiterated its objections. Thereafter, on June
17, 1974, Respondent amended its exceptions and
filed a motion for reconsideration of the Acting Re-
gional Director's decision to assert jurisdiction in
light of the Board's May 24, 1974, decision in Ming
Quong5 which explicitly overruled the precedents in
Jewish Orphan's Home and Children's Village. On
December 5, 1974, the Board issued its Decision and
i Official notice is taken of the record in the representation proceeding,
Case 31-RC-2618, 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 Electrosystems, Inc, 166 NLRB 938 (1967), enfd 388 F 2d 683 (C.A 4,
1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F 2d 26
(C.A 5, 1969); Intertype Co. v. Penello, 269 F Supp. 573 (D C. Va , 1967),
Follett Corp, 164 NLRB 378 (1967), enfd 397 F.2d 91 (C A. 7, 1968); Sec.
9(d) of the NLRA, as amended
2 Jewish Orphan's Home of Southern California a/k/a Vista del Mar Child
Care Service, 191 NLRB 32 (1971)
3 The- Children's Village, Inc., 186 NLRB 953 (1970)
4 The social workers voted for inclusion in the unit while the office cleri-
cals voted against representation by the Union and against inclusion in the
unit
5 Ming Quong Children's Center, 210 NLRB 899 (1974).
226 NLRB No. 4
CHILDREN 'S BAPTIST HOME OF SO . CALIF.
Order Directing Hearing,' asserting jurisdiction over
Respondent based on (1) Respondent's failure to file
a timely request for review of the Decision and Di-
rection of Election and (2) the need to protect the
statutory rights of Respondent's employees, who, as
alleged in the companion unfair labor practice case,7
engaged, to their detriment, in protected concerted
activities in reliance upon the assertion of jurisdic-
tion.
After the hearing on objections, at which Respon-
dent again raised the issue of jurisdiction, Respon-
dent filed with the Hearing Officer a brief arguing
that the settlement of the companion unfair labor
practice case had removed the rationale for asserting
jurisdiction in the representation proceedings. In his
Report and Recommendation, issued April 3, 1975,
the Hearing Officer recommended that the objec-
tions be overruled and the Union certified. Respon-
dent filed timely exceptions to the Report and Rec-
ommendations and to the failure of the Hearing
Officer to deal with the jurisdictional issue, and in
support thereof incorporated its posthearing brief
and its argument against the assertion of jurisdiction.
On November 7, 1975, the Board issued its Decision
and Certifications, in which it adopted the Hearing
Officer's findings and recommendations and specifi-
cally denied Respondent's request that it reverse its
prior decision and withdraw its assertion of jurisdic-
tion because Respondent has raised no new issues of
fact or law in claiming that the prior decision was
incorrect at the time of its issuance. The Board fur-
ther found that, in any event, Respondent is a
"health care institution" within the meaning of Sec-
tion 2(14) of the Act. Accordingly, the Board certi-
fied the Union.
In its submissions in this proceeding, Respondent,
in substance, contends that the Board lacks discre-
tionary jurisdiction over Respondent under the Ming
Quong;precedent. On the other hand, counsel for the
General Counsel contends in substance that (1) the
jurisdictional issues raised by Respondent herein
were decided by the Board in the underlying repre-
sentation case and may not be relitigated and (2) the
basis of Respondent's motion for summary judgment
and its' opposition to the General Counsel's motion is
eliminated by the Board's decision in St. Aloysius
Home,& expressly overruling Ming Quong. We agree
with the General Counsel.
With respect to Respondent's contention that the
Board" does not have discretionary jurisdiction over
it, it is apparent that Respondent seeks to relitigate
6 215 NLRB 306 (1974) A hearing was also directed on a second misrep-
resentation objections
Children 's Baptist Home of Southern California, 215 NLRB 303 (1974).
The Rhode Island Catholic Orpahn Asylum, a /k/a St Aloysius Home, 224
NLRB 134x4, (1976)
7
the jurisdictional issues considered and decided by
the Board in the underlying representation proceed-
ings. It is well settled that in the absence of newly
discovered 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 liti-
gated in a prior representation proceeding.
All issues, raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered 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 pro-
ceeding.10 Further, we agree with the General Coun-
sel that the standard established in St. Aloysius Home
for specialized institutions such as Respondent has
been met by Respondent's admitted annual gross
revenues in excess of $250,000 and annual out-of-
state purchases in excess of $50,000 so as to warrant
the exercise of the Board's jurisdiction. We shall, ac-
cordingly, deny Respondent's motion and grant the
General Counsel's Motion for Summary Judgment."
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now, and has been at all times ma-
terial herein, a nonprofit institution providing resi-
9 See Pittsburgh Plate Glass Co v. N L R B, 313 U S 146, 162 (1941),
Rules and Regulations of the Board, Sees 102.67(f) and 102 69(c)
10 In its answer Respondent denies the allegations of the complaint with
respect to ( 1) its status as an employer in commerce within the meaning of
Sec 2(6) and (7) of the Act, (2) the election results and certification ,-and (3)
the request and refusal to bargain. Respondent's employer status and the
election results and certification were established in the underlying repre-
sentation proceeding and may not be rehtigated. As to the complaint allega-
tions of a request and refusal to bargain, attached to the General Counsel's
Motion for Summary Judgment are a letter of request by the Union dated
November 19, 1975, and a letter from Respondent dated January 30, 1976,
refusing to recognize the Union As Respondent offers nothing to contro-
vert these letters, the allegations concerning a request and refusal to bargain
are found to be true Thrift Drug, a Division of J C Penney Company, Inc,
215 NLRB 259 (1974), and cases cited therein
11 In view of our determinations herein as to jurisdiction and as to the
Respondent's status as an employer under Sec 2(6) and (7) of the Act, we
find it unnecessary to rule upon its contentions that it is not a health care
institution under Sec. 2(14) of the Act and that due process requires, that a
hearing be held thereon
Member Penello would deny Respondent 's motion and grant the General
Counsel's Motion for Summary Judgment solely on the ground that Re-
spondent has not raised any issue which is properly litigable in this proceed-
ing. As explained in the dissenting opinion in St Aloysius Home, Member
Penello continues to adhere to Ming Quong and would not assert jurisdic-
tion over charitable, nonprofit, or noncommercial organizations
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dential care for emotionally disturbed children in In-
glewood, California. Respondent, in the course and
conduct of its business operations, annually purchas-
es and receives goods or services valued in excess of
$50,000 directly from suppliers located outside the
State of California. Respondent, in the course and
conduct of its business operations, annually derives
gross revenues in excess of $250,000.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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. THE LABOR ORGANIZATION INVOLVED
American Federation of State, County, and Mu-
nicipal Employees , AFL-CIO, Council 36 , is a labor
organization within the meaning of Section 2(5) of
the Act.
B. The Request To Bargain and Respondent's Refusal
Commencing on or about November 19, 1975, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about January 30, 1976, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and,bargain with
the Union as the exclusive representative for collec-
tive bargaining of all employees in said unit.
Accordingly, we find that Respondent has, since
January 30, 1976, 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 (1) of the
Act.
III. THE UNFAIR LABOR PRACTICES
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 full-time and regular part-time employees
of The Employer at its Inglewood, California,
facility, including social workers, child care
workers, clinic attendants, drivers, laundry and
maintenance staff, night watchmen, cooks, dish-
washers, recreation leaders, teaching assistants,
and ceramic instructors; excluding all other em-
ployees, guards and supervisors within the
meaning of the Act.
2. The certification
On January 23, 1974, a majority of the employees
of Respondent in said unit , in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 31 , designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent . The Union was certified as the
collective-bargaining representative of the employees
in said unit on November 7, 1975 , and the Union
continues to be such exclusive representative within
the meaning of Section 9(a) 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 opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States and tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 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 services 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 Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
CHILDREN 'S BAPTIST HOME OF SO . CALIF. 9
nett Construction Company, 149 NLRB 1419,- 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAw
1. Children's Baptist Home of Southern California
is an employer engaged in commerce, within the
meaning of Section 2(6) and (7) of the Act.
2. American Federation of State, County, and
Municipal Employees, AFL-CIO, Council- 36, is a
labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time employees of
the Employer at its Inglewood, California, facility,
including social workers, child care ,workers, clinic
attendants, drivers, laundry and maintenance staff,
night watchmen, cooks, dishwashers, recreation lead-
ers, teaching assistants , and ceramic instructors; ex-
cluding all other employees, guards, and supervisors
within the meaning of the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since November 7, 1975, the above-named la-
bor 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 January 30, 1976, 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 to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing 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.
Children's Baptist Home of Southern California, In-
glewood, California, its officers, agents, successors,
and assigns, shall:
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 American Federation of
State, County, and Municipal Employees, AFL-CIO,
Council 36, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time employees
of the Employer at its Inglewood, California,
facility, including social workers, child care
workers, clinic attendants, drivers, laundry and
maintenance staff, night watchmen, cooks, dish-
washers, recreation leaders, teaching assistants,
and ceramic instructors; excluding all other em-
ployees, guards, and supervisors within the
meaning of 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 Inglewood, California, facility cop-
ies of the attached notice marked "Appendix." 12
Copies of said notice, on forms provided by the Re-
gional Director for Region 31, after being duly
signed by Respondent's representative, shall be post-
ed 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 Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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,
12 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
10 DECISIONS OF 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
American Federation of State, County, and Mu-
nicipal Employees, AFL-CIO, Council 36, as
the exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Sectiow 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment, and, if., an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time and regular part-time employ-
ees of the Employer at its Inglewood, Califor-
nia, facility, including social workers, child
care workers, clinic attendants, drivers, laun-
dry and maintenance staff, night watchmen,
cooks, dishwashers, recreation leaders, teach-
ing assistants, and ceramic instructors; ex-
cluding all other employees, guards, and su-
pervisors within the meaning of the Act.
CHILDREN'S BAPTIST HOME OF SOUTHERN
CALIFORNIA