Cincinnati Association for the Blind

National Labor Relations Board - Board Decisions

Sep 18, 1979

244 N.L.R.B. 1140 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cincinnati Association for the Blind and Truck Driv-
ers, Chauffeurs and Helpers Local Union No. 100,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Case 9-CA-12914
September 18, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS,
MURPHY, AND TRUESDALE
Upon a charge filed on August 30, 1978, by Truck
Drivers, Chauffeurs and Helpers Local Union No.
100, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, and duly served
on Cincinnati Association for the Blind, herein called
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 9, issued a complaint and notice of hearing on
August 31, 1978, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor 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. Copies 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 June 15, 1978, fol-
lowing a Board election in Case 9 RC-12066 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about August 25, 1978, and at all times there-
after, 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
September 15, 1978, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint.
On September 25, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. On October 5, the National In-
dustries for the Blind (NIB) filed a motion for leave to
I Official notice is taken of the record in the representation proceeding.
Case 9-RC-12066, 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 (4th Cir.
1968); Golden Age Beverage Co., 167 NLRB 151 (1967). enfd. 415 F.2d 26
(5th Cir. 1969): Intertype Co. v. Penello, 269 F.Supp 573 (D.C.Va.. 1967);
Follet Corp.. 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
intervene as amicus curiae, for reconsideration en
bane of the Board's Decision in Case 9-RC-12066,
and for oral argument. On October 16, 1978, the Re-
gional Director for Region 9 referred to the Board the
National Federation of the Blind's (NFB) motion to
intervene as a party.
The Charging Party filed statements in opposition
to the motions of the NIB and the NFB on October
26, 1978. On November 6, 1978, Respondent filed a
motion for oral argument, en baine consideration, and
summary judgment. The Charging Party filed a state-
ment in opposition to Respondent's motion on No-
vember 8, 1978. The NFB, by letter dated November
22, 1978, also opposed Respondent's Motion for Sum-
mary Judgment. On January 3 1. 1979. as corrected on
February 7, 1979, the Board issued its order granting
the motions to intervene, denying the motions for oral
argument, and transferring the proceeding to the
Board, and a Notice To Show Cause. Respondent,
the NIB, the NFB, and the Charging Party thereafter
filed responses to the Notice To Show Cause.2
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and its response to
the Notice To Show Cause, Respondent contends
that the Union's certification was invalid because
sheltered workshop clients are not employees within
the Section 2(3) of the Act and an overall production
and maintenance unit at the workshop is not appro-
priate for collective bargaining. The General Counsel
argues that all material issues have been previously
decided and there are no litigable issues of fact re-
quiring a hearing. We agree with the General Coun-
sel.
Our review of the record herein, including the rec-
ord in Case 9 RC 12066. discloses that a representa-
tion hearing was held on August 31, 1977. Respon-
dent contended at that time that () workshop clients
are not employees within the meaning of Section 2(3)
of the Act; (2) even if clients are employees, it would
not effectuate the purposes of the Act to assert juris-
diction over them: and (3) a bargaining unit including
all production and maintenance employees and cli-
ents is inappropriate. On May 5, 1978, the Board is-
sued a Decision and Direction of Election asserting
jurisdiction with respect to the clients employed at
Respondent's workshop and finding a unit of all pro-
' Respondent also moved to strike two Wall Sreet Jourrul articles ap-
pended to the NFB's brief in support of the General Counsel's Motion for
Summar) Judgment and all references to the articles on the grounds that
they are nonprobative, immaterial. irrelevant, and prejudicial. Since we do
not rely on the articles in ruling on the Motions or Summary Judgment we
find it unnecessary to pass upon Respondent's motion to strike.
244 NLRB No. 154
1140
CINCINNATI ASSOCIATION FOR THE BLIND
duction and maintenance employees and clients to be
appropriate. An election was conducted on June 7,
1978, in which 44 votes were cast for and 35 against
the Union, with 3 challenged ballots. On June 15,
1978, the Regional Director for Region 9 issued a
Certification of Representative.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.3
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 previ-
ously unavailable evidence, nor do we find that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the General Counsel's Motion
for Summary Judgment and deny Respondent's Mo-
tion for Summary Judgment. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. 'THE BUSINESS OF RESPONDENI
Respondent is an Ohio corporation engaged in the
operation of a sheltered workshop at its facility lo-
cated at 2045 Gilbert Avenue, Cincinnati, Ohio. Dur-
ing the past 12 months Respondent's workshop sales
exceeded $2 million and Respondent sold goods and
materials valued in excess of $50,000 directly from its
facility in Cincinnati, Ohio, to points outside the State
of Ohio.
We find, on the basis of the foregoing, that Respon-
dent 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.
JSee Pittsburgh Plate Glass Co v. N.L.R.B.. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board. Secs. 102.67(f) and 102.69(c).
4As noted above, Respondent and the NIB filed motions seeking, inter
alia. reconsideration en bane of the Board's decision to assert jurisdiction
with respect to Respondent's sheltered workshop "clients," We deferred rul-
ing on the requests for reconsideration in order to consider the supporting
arguments. Having considered the responses to the Notice To Show Cause,
we find no basis for reconsidering the decision in the representation proceed-
ing that Respondent's "clients" are employees within the meaning of Sec
2(3) of the Act and that the assertion ofjurisdiction with respect to them will
effectuate the purposes of the Act.
11. IHE LABOR ORGANIZATION INVOLVED
Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
Ill. HE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
I. 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 production and maintenance employees and
clients. including shipping and receiving employ-
ees, of the Respondent's workshop located at
2045 Gilbert Avenue, Cincinnati. Ohio, exclud-
ing office clerical employees. professional em-
ployees, guards, and supervisors as defined in the
Act.
2. The certification
On June 7, 1978, 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 9. designated the Union as their
representative for the purpose of collective bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on June 15, 1978, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9 (a) of the Act.
B. The Request To Bargain and Respondent's Re/i4sal
Commencing on or about August 17, 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 employ-
ees in the above-described unit. Commencing on or
about August 25, 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 25. 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
1141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce 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 () 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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 Con-
struction 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. Cincinnati Association for the Blind is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Truck Drivers, Chauffeurs and Helpers Local
Union No. 100, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, is a labor organization
within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees and
clients, including shipping and receiving employees,
of Respondent's workshop located at 2045 Gilbert
Avenue, Cincinnati, Ohio, excluding office clerical
employees, professional employees, guards, and su-
pervisors as defined in 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 June 15, 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 25, 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 Rela-
tions Board hereby orders that the Respondent, Cin-
cinnati Association for the Blind, Cincinnati. Ohio, its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Truck Drivers, Chauf-
feurs and Helpers Local Union No. 100, affiliated
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All production and maintenance employees and
clients, including shipping and receiving employ-
ees, of the Respondent's workshop located at
2045 Gilbert Avenue, Cincinnati, Ohio, exclud-
ing office clerical employees, professional em-
ployees, 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:
1142
'IN('INNAI I ASSOCIA'ION FOR IliE BLINI)
(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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at 2045 Gilbert Avenue. Cincinnati, Ohio.
copies of the attached notice marked "Appendix."5
Copies of said notice, on forms provided by the Re-
gional Director for Region 9. after being duly signed
by Respondent's representative, 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 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 9. in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER TRUESDALE, concurring:
I agree with my colleagues, Chairman Fanning and
Member Jenkins, that the Respondent herein has un-
lawfully refused to bargain with the Union. In my
opinion, the Board has properly asserted jurisdiction
over Respondent's clients. See Lighthouse for the
Blind of Houston, 244 NLRB 1144 (1979), especially
footnote fn. 13.
MEMBER MURPHY, dissenting:
In the underlying representation case, I would not
have asserted jurisdiction over this Employer for the
reasons set forth in my dissenting opinion therein6
and in Abilities and Goodwill, Inc., 226 NLRB 1224
(1976), and Goodwill Industries of Southern California.
231 NLRB 536 (1977). As more fully discussed in that
dissent I would not assert jurisdiction over charitable,
nonprofit, noncommercial institutions which provide
employment for the handicapped. Nor would I find
the Employer's engagement in certain activities of a
so-called commercial nature to warrant a different re-
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."
6235 NLRB 1448 (1978).
suit, inasmuch as this Employer does not exist for the
purpose of maximizing profits. but for the sole pur-
pose of maintaining work for the handicapped. Thus.
those activities of the Employer which are asserted to
be of a commercial nature are "merely ancillary to its
rehabilitative object." I§fri-talh Eantl,il//t' Irnc.. 205
NL.RB 637 (i973).
As a consequence. I would not find that Respon-
dent violated Section 8(a)(5) of the Act in refusing to
bargain. Accordingly. I would grant Respondent's
rather than the General Counsel's Motion for Suim-
mary Judgment.
A PPE N DIX
NOTIC(E T() EMPI)YiES
POSTED BY ORDER OF () 111
NAIO(NAL LABOR REI.AII()NS BARD
An Agency of the United States Government
WEt WIL.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Truck
Drivers, Chauffeurs and Helpers Local Union
No. 100, affiliated with the International Broth-
erhood of Teamsters. Chauffeurs. Warehouse-
men and Helpers of America, and as the exclu-
sive representative of the employees in the
bargaining unit described below.
WE Wtl.l. NOT in an' 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.
Wt WLL., upon request, bargain with the
above-named Union. as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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 production and maintenance employees
and clients, including shipping and receiving
employees, of the Employer's workshop lo-
cated at 2045 Gilbert Avenue, Cincinnati.
Ohio, excluding office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
CINCINNATI ASSOCIAIION FOR IHFE BLIND
I 143