Children's Receiving Home of Sacramento

National Labor Relations Board - Board Decisions

Mar 11, 1980

248 N.L.R.B. 308 (N.L.R.B. 1980)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Children's Receiving Home of Sacramento and
Social Services Union Local 535, Service Em-
ployees International Union, AFL-CIO. Case
20-CA-14864
March 11, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
Upon a charge filed on September 20, 1979, by
Social Services Union Local 535, Service Employ-
ees International Union, AFL-CIO, herein called
the Union, and duly served on Children's Receiv-
ing Home of Sacramento, herein called Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 20, issued a complaint on October 25, 1979,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor prac-
tices 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.
Copies 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
complaint alleges in substance that on July 17,
1979, following a Board election in Case 20-RC-
14800, the Union was duly certified as the exclu-
sive collective-bargaining representative of Respon-
dent's employees in the unit found appropriate;'
and that, commencing on or about August 20,
1979, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On November
1, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the al-
legations in the complaint.
On November 23, 1979, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November
30, 1979, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to Notice To Show
i Official notice is taken of the record ill the rcprescntationll proced-
ing. Case 20-RC- 14800. as the term "record" is defir'd il Secs 1028,
and 102 6
9
(g) of the Board's Rules and Regulations. Series , as amended
See LTV Elecirolystenm. In(.'. 166 NLRiB 938 (196h7. iIfd 388 F 2d 83
(4th Cir 1968); Golden Age Bverage (o>. 167 NLRB ISI l967). enifd 415
F2d 26 (5lh Cir 1969); Iterrype Co X Pe lflio. 269 F Supp 573
(DC Va. 1967); Follett Corp, It)4 NLRB 378 (1967). enfd 397 2d 91
(7th Cir 1968). Sec 9d) If the NLRA. as amended
248 NLRB No. 53
Cause, and a Cross-Motion for Summary Judgment
and/or Motion for Hearing.
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 General Counsel's Motion for
Summary Judgment and Respondent's Cross-
Motion for Summary Judgment and/or
Motion for Hearing
Counsel for the General Counsel contends that it
is entitled to summary judgment because all the
factual and legal issues raised by Respondent have
been determined by admissions in its answer to the
complaint or by the Board's prior determination in
the representation proceeding (Case 20-RC-14800).
Respondent asserts as affirmative defenses to the
complaint and the Motion for Summary Judgment
that the complaint fails to state a claim upon which
relief may be granted, that the certification upon
which the complaint is based is not proper since
the Board did not and does not have jurisdiction
over Respondent, that recent events and facts con-
stitute new evidence clearly demonstrating that the
Board lacks jurisdiction over Respondent, and that
the information requested by the Union is not rel-
evant to its role as the collective-bargaining repre-
sentative of the employees of Respondent. We find
no merit in Respondent's position.
In determining whether a complaint states a
claim upon which relief may be granted, the test is
whether the allegations therein, if true, set forth a
violation of the Act. We have reviewed the com-
plaint in the instant matter and conclude that it
clearly sets forth a violation of the Act.
Respondent's assertion that the Board lacks juris-
diction over it is based on arguments which were
fully litigated in the representation proceeding.
Prior to denying Respondent's request for review
in that matter, the Board specifically considered
Respondent's argument that it lacked sufficient
control over its labor relations to engage in mean-
ingful collective bargaining. After reviewing the
entire record in that proceeding, the Board con-
cluded that the evidence clearly supported the Re-
gional Director's determination to the contrary.
Respondent now urges us to reconsider our deter-
mination of jurisdiction in light of the recently
issued decision in Lutheran Welfare Services of Illi-
nois v. N.L.R.B.2 In that case, the court held that
the Board lacked jurisdiction over the employer be-
cause an employer who was exempt from the Act ex-
0(7 F 2d 777 (7th Cir 1979)
CHILDREN'S RECEIVING HOME OF SACRAMENTO 309
erted such a degree of control over the unit employees
as to constitute a 'joint employer. " In so holding, the
court relied upon a statute, 42 US.C. sec. 2928f(a),
which required the exempt employer to "adopt for
itself and other agencies using funds or exercising au-
thority for which it is responsible [i.e., the nonexempt
employer], rules designed to establish specific stan-
dards governing salaries, salary increases, travel and
per diem allowances, and other employee benefits
.... (emphasis added)." Here the Department of
Social Welfare for the County of Sacramento,
through its director, submits recommendations as to
the precise number of positions needed at the
Home and the precise level of wages and benefits
to be assigned to each position; however, the Re-
spondent is free to deviate from these recommenda-
tions. Under these circumstances we do not find
that the Department of Social Welfare exerts a suf-
ficient degree of control over the unit employees
so as to constitute a "joint employer." According-
ly, we conclude that Respondent is subject to our
jurisdiction.
Respondent's allegation that recent events and
facts constitute new evidence is unsupported by af-
fidavit or otherwise. A mere allegation of the exis-
tence of new evidence is not enough; in such cir-
cumstances Respondent must allege specifically
what facts and events constitute new evidence so
that the Board maymake a meaningful determina-
tion as to whether the facts and events, if true, are
sufficient to alter the result.3
As to Respondent's allegation that the informa-
tion requested by the Union is not relevant, it is
sufficient to say that the information goes to the
identity of the unit members, their wages and bene-
fits, and to the work rules under which the unit
members must operate. Such information has long
been held to be presumptively relevant and Re-
spondent has neither presented nor alleged the exis-
tence of any evidence to overcome that presump-
tion. 4
All other issues raised by Respondent in this pro-
ceeding were or could have been litigated in the
prior representation proceeding, and Respondent
does not offer any newly discovered or previously
unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. It is well settled that
in the absence of newly discovered or previously
unavailable evidence or special circumstances a re-
spondent in a proceeding alleging a violation of
Section 8(a)(5) is not entitled to relitigate issues
:' See. e g 14,r,n Eictrnt C (opat. IlHalihorneu W',rk, 198 NLRB
623 (1
97
2)
4 See, e.g. .4vdin Ecrgy Di:irn. 245 NI.RB No 66 (1979); ierona
Dy'etruff Divisho Mahay Chem l cal Corporation. 233 NI. R 109 ( 1977)
which were or could have been litigated in a prior
representation proceeding.5 We therefore find that
Respondent has not raised any issue other than
those discussed above which is properly litigable in
this unfair labor practice proceeding. Accordingly,
we grant the General Counsel's Motion for Sum-
mary Judgment and deny the Respondent's Cross-
Motion for Summary Judgment and/or Motion for
Hearing.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Respondent is a nonprofit, charitable corpo-
ration licensed by the State of California to provide
short-term residential treatment care for approxi-
mately 70 boys and girls, aged 2 through 18.
During the past calendar year the Respondent, in
the course and conduct of its business operations,
received gross revenues in excess of $600,000.
During that same period the Respondent purchased
directly from suppliers located outside the State of
California goods, materials, and supplies valued in
excess of $2,000.
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.
II1. THE LABOR ORGANIZATION INVOLVED
Social Services Union Local 535, Service Em-
ployees International Union, AFL-CIO, 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 full-time and regular part-time child care
workers, housekeepers, food service workers,
maintenance workers, clerical workers and li-
censed vocation nurses employed by the Re-
spondent at its facility located at 3555 Auburn
Boulevard, Sacramento, California; excluding
' See PIlrhiUrh Plawr Gla~e Co .¥ L R Bl 313 U S 146. 162 (1941):
Rules and Regulations of the Board. Secs 102 67(n and 102 69(c)
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confidential employees, managerial employees,
professional employees, guards and supervisors
as defined in the Act.
2. The certification
On July 9, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 20 designated the Union as
their representative for the purpose of collective
bargaining with Respondent.The Union was certi-
fied as the collective-bargaining representative of
the employees in said unit on July 17, 1979, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about July 24, 1979, the
Union has requested Respondent to furnish it with
the following information:
Names, dates of hire, rates of pay, and clas-
sifications for all current employees in the bar-
gaining unit;
Job descriptions of all covered classifica-
tions;
Copies of any manuals, rule books or other
materials governing employee conduct; and
Copies of materials detailing all current
fringe benefits, and showing eligibility require-
ments, employer costs, employee costs and
copies of insurance and pension plans.
Since on or about August 20, 1979, and continu-
ing to date, Respondent has failed and refused to
furnish the Union the requested information.
On or about October 4, 1979, the Union request-
ed Respondent by letter to recognize it as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit described above
and to bargain collectively with it as the exclusive
collective-bargaining representative of said employ-
ees with respect to their rates of pay, wages, hours
of employment, and other terms and conditions of
employment.
Since on or about October 4, 1979, Respondent
has failed and refused to recognize and bargain
with the Union as the exclusive collective-bargain-
ing representative of its employees in the unit de-
scribed above.
Accordingly, we find that Respondent has, since
August 20, 1979, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 the Children's Receiving Home
of Sacramento set forth in section III, above, oc-
curring in connection with its operations described
in section I, above, have a close, intimate, and sub-
stantial 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
meaning of Section 8(a)(5) and (1) of the Act, we
shall order that it cease and desist therefrom; pro-
vide the Union with the information which it re-
quested July 24, 1979; upon request, bargain collec-
tively with the Union as the exclusive representa-
tive of all employees in the appropriate unit; and, if
an understanding is reached, embody such under-
standing in a signed agreement.
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. Children's Receiving Home of Sacramento is
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Social Services Union Local 535, Service Em-
ployees International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time child care
workers, housekeepers, food service workers, main-
tenance workers, clerical workers and licensed vo-
cation nurses employed by the Respondent at its fa-
cility located at 3555 Auburn Boulevard, Sacra-
mento, California; excluding confidential employ-
ees, managerial employees, professional employees,
CHILDREN'S RECEIVING HOME OF SACRAMENTO 311
guards and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
4. Since July 17, 1979, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employees in the afore-
said apropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about August 20, 1979, and
at all times thereafter, to provide information
which is relevant to the collective-bargaining pro-
cess to the above-named labor organization as the
exclusive bargaining representative of all the em-
ployees of Respondent in the appropriate unit, Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section
8(a)(5) of the Act.
6. By refusing on or about October 4, 1979, and
at all times thereafter, to bargain collectively with
the above-named labor oraganization as the exclu-
sive bargaining representative of all the employees
of Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices with the meaning of Section 8(a)(5) of the
Act.
7. By the aforesaid refusals to bargain, Respon-
dent 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)(l) of the Act.
8. 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,
Children's Receiving Home of Sacramento, Sacra-
mento, 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
conditions of employment with Social Services
Union Local 535, Service Employees International
Union, AFL-CIO, as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate unit:
All full-time and regular part-time child care
workers, housekeepers, food service workers,
maintenance workers, clerical workers and li-
censed vocation nurses employed by the Re-
spondent at its facility located at 3555 Auburn
Boulevard, Sacramento, California; excluding
confidential employees, managerial employees,
professional employees, guards and supervisors
as defined in the Act.
(b) 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.
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.
(b) Provide the above-named labor organization
with the following information:
Names, dates of hire, rates of pay, and clas-
sifications for all current employees in the bar-
gaining unit;
Job descriptions of all covered classifica-
tions;
Copies of any manuals, rule books, or other
materials governing employee conduct; and
Copies of materials detailing all current
fringe benefits, and showing eligibility require-
ments, employer costs, employee costs and
copies of insurance and pension plans.
(c) Post at its Sacramento facility copies of the
attached notice marked "Appendix." 6 Copies of
said notice, on forms provided by the Regional Di-
rector for Region 20, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent 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. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In he een I hat thi, Order i, eforced bh at Jludgment 1 ,I L'tired
Stalts', Court of Appeal, the x rd,Js in the nlotice re.dinig 'Poted hb
Ordetl of the NationatJl I hior Rliolls B,,, t .. h.I J [C.l d j s-tcd Pu'.ts-
tnt to . JdgntCrll o t tUnited SIt'c ( ,t l A ,I Arp lds FI'or, mg i
Order of the Nhltrl.lI Relations Ho.rd"
312 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 Social Services Union Local 535, Service
Employees International Union, AFL-CIO, as
the exclusive representative of the employees
in the bargaining unit described below.WE
WILL NOT in any like or related manner inter-
fere 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 represen-
tative 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 understanding is
reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time child care
workers, housekeepers, food service work-
ers, maintenance workers, clerical workers
and licensed vocation nurses employed by
Children's Receiving Home of Sacramento
at its facility located at 3555 Auburn Boule-
vard, Sacramento, California; excluding con-
fidential employees, managerial employees,
professional employees, guards and supervi-
sors as defined in the Act.
WE WILL provide the above-named Union
with the following information:
Names, dates of hire, rates of pay, and
classifications for all current employees in
the bargaining unit;
Job descriptions of all covered classifica-
tions;
Copies of any manuals, rule books, or
other materials governing employee con-
duct; and
Copies of materials detailing all current
fringe benefits, and showing eligibility re-
quirements, employer costs, employee costs
and copies of insurance and pension plans.
CHILDREN'S RECEIVING HOME OF
SACRAMENTO