363 NLRB No. 78 (N.L.R.B. 2016)

Community Support Network

National Labor Relations Board - Board DecisionsJan 5, 2016

363 NLRB No. 78 (N.L.R.B. 2016)

363 NLRB No. 78 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Community Support Network and Service Employees International Union Local 1021. Case 20–CA– 143287 January 5, 2016 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union's certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed by Service Em- ployees International Union Local 1021 (the Union) on December 16, 2014, the General Counsel issued the complaint on December 30, 2014, alleging that Commu- nity Support Network (the Respondent) has violated Sec- tion 8(a)(5) and (1) of the Act by refusing the Union's request to recognize and bargain following the Union's certification in Case 20–RD–117284. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On February 6, 2015, the General Counsel filed a Mo- tion for Summary Judgment. On February 9, 2015, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response and a cross-motion for summary judgment, and the Gen- eral Counsel filed an opposition to the Respondent’s cross-motion. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain but con- tests the validity of the certification on the basis of its affirmative defense that it withdrew recognition from the Union on the basis of a petition signed by a majority of unit employees. The Respondent received the petition on October 3, 2014, after the Regional Director issued a tally of ballots on August 29, 2014, but before the Re- gional Director issued his Report on Employer’s Objec- tion on October 31, 2014, and the Board issued the certi- fication of representative on November 21, 2014. The Respondent argues that because the Union was not certi- fied at the time the Respondent received the petition, it did not act unlawfully when withdrew recognition from the Union on October 3, 2014, and subsequently refused to recognize and bargain with the Union on December 4, 2014. It is well settled that an alleged postelection loss of majority support is not relevant to the question of wheth- er a union should be certified as the result of a properly conducted Board election. See Brooks v. NLRB, 348 U.S. 96, 104 (1954); Macy’s Inc., 361 NLRB No. 163, slip op. at 1 (2015); San Miguel Hospital Corp. d/b/a Alta Vista Regional Hospital, 356 NLRB No. 167, slip op. at 3 (2011), enfd. 697 F.3d 1181, 1187 (D.C. Cir. 2012) (“post-election assertion that a union has lost ma- jority support has no bearing on the validity of an elec- tion that has already occurred”). In any event, the Re- spondent is procedurally barred from raising this issue here, since it had the opportunity to raise this argument, but did not, in the underlying representation proceeding, either directly or through a motion to reopen the record.1 All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a California corporation with an office and place of business at 1410 Guerneville Road, Santa Rosa, California, has been en- gaged in the business of assisting and housing disabled adults. During the calendar year ending December 31, 2013, the Respondent derived gross revenues in excess of $250,000, and purchased and received goods valued in excess of $5000 which originated directly from points located outside the State of California. 1 See Macy’s, supra, slip op. at 1 and fn. 4, citing Sec. 102.65(e)(1) of the Board’s Rules and Regulations (motion to reopen the record must be filed promptly upon discovery of the evidence sought to be adduced). 2 Therefore, we deny the Respondent’s cross-motion for summary judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the decertification election conducted from August 13 to August 27, 2014, the Union was certified on November 21, 2014, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full-time and regular part-time residential counse- lors, relief residential counselors, lead residential coun- selors, rehabilitation support staff counselors, case managers, clerical staff [except those located in the administration office] and maintenance personnel lo- cated at the Agency’s facilities in Sonoma County, Cal- ifornia. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated December 2, 2014, the Union requested that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit. By letter dated December 4, 2014, the Respondent re- fused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since December 4, 2014, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Un- ion and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Community Support Network, Santa Rosa, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Service Employees International Union Local 1021, as the exclusive collective-bargaining representative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and, if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time residential counse- lors, relief residential counselors, lead residential coun- selors, rehabilitation support staff counselors, case managers, clerical staff [except those located in the administration office] and maintenance personnel lo- cated at the Agency’s facilities in Sonoma County, Cal- ifornia. (b) Within 14 days after service by the Region, post at its facilities in Sonoma County, California, copies of the attached notice marked "Appendix."3 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 20, after being signed by the Respondent's author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such 3 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." COMMUNITY SUPPORT NETWORK 3 means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since December 4, 2014. (c) Within 21 days after service by the Region, file with the Regional Director for Region 20 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 5, 2016 Mark Gaston Pearce, Chairman Kent Y. Hirozawa, Member Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Service Employees International Union Local 1021 as the exclusive collective-bargaining representative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing bargaining unit: All full-time and regular part-time residential counse- lors, relief residential counselors, lead residential coun- selors, rehabilitation support staff counselors, case managers, clerical staff [except those located in the administration office] and maintenance personnel lo- cated at the Agency’s facilities in Sonoma County, Cal- ifornia. COMMUNITY SUPPORT NETWORK The Board’s decision can be found at www.nlrb.gov/case/20-CA-143287 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.