Hudelson Baptist Childrens Home And Laborers' Int'L Union Of North America, Afl--Cio, Local 1274

National Labor Relations Board - Board Decisions

Sep 12, 1985

276 N.L.R.B. 126 (N.L.R.B. 1985)

126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hudelson Baptist Childrens Home and Laborers'
International Union of North America, AFL-
CIO, Local 1274 Case 14-CA-17975
12 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon a charge filed by the Union on 16 May
1985 and an amended charge filed on 20 May 1985,
the General Counsel of the National Labor Rela
tions Board issued a complaint on 28 May 1985
against the Respondent alleging that it has violated
Section 8(a)(5) and (1) of the National Labor Rela
tions Act
The complaint alleges that on 24 April 1985, fol
lowing a Board election in Case 14-RC-9946, the
Union was certified as the exclusive collective bar
gaining representative of the Respondents employ
ees in the unit found appropriate (Official notice is
taken of the record in the representation pro
ceeding as defined in the Board s Rules and Regu
lations , Secs 102 68 and 102 69(g), amended Sept
9, 1981, 46 Fed Reg 45922 (1981), Frontier Hotel,
265 NLRB 343 (1982)) The complaint further al
leges that since 3 May 1985 the Respondent has re
fused to bargain with the Union On 7 June 1985
the Respondent, filed its answer admitting in part
and denying in part the allegations in the corn
plaint
On 14 June 1985 the General Counsel filed a
Motion for Summary Judgment On 18 June 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 brief in opposition to the General Counsel s
Motion
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
Ruling on Motion for Summary Judgment
The Respondents answer admits it refusal to
bargain but attacks the validity of the certification
based on its contention that the Board should not
assert jurisdiction because it is a nonprofit chanta
ble organization The General Counsel argues that
all material issues have been or could have been
previously decided We agree with the General
Counsel
The record including the record in Case 14-
RC-9946, reveals that the Regional Director issued
a Decision and Direction of Election on 18 March
1985, in which, inter alia, he rejected the Respond
ent's contention that the Board should not assert
jurisdiction because it is a nonprofit, charitable or
ganization The Respondent thereafter filed a
timely request for review, which the Board denied
11 April 1985 An election was held 16 April 1985
The tally of ballots shows that of approximately 18
eligible voters, 12 cast valid ballots for and 5
against the Union, there were no challenged bal
lots On 24 April 1985 the Regional Director certi
feed the Union as the exclusive collective bargain
ing representative of the employees in the unit
found appropriate
By letter dated 30 April 1985, the Union request
ed that the Respondent bargain and since 3 May
1985 the Respondent has refused to bargain with
the Union
It is well settled that in the absence of newly dis
covered and 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 that were or could have been
litigated in a prior representation proceeding See
Pittsburgh Glass Co v NLRB, 313 US 146, 162
(1941) Secs 102 67(f) and 102 69(c) of the Board s
Rules and Regulations
All issues raised by the Company were or could
have been litigated in the prior representation pro
ceeding The Respondent does not offer to adduce
at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special
circumstances that would require the Board to re
examine the decision made in the representation
proceeding We therefore find that the Respondent
has not raised any issue that is properly litigable in
this unfair labor practice proceeding Accordingly
we grant the Motion for Summary Judgment
On the entire record, the Board makes the fol
lowing
FINDINGS OF FACT
I JURISDICTION
The Respondent a nonprofit charitable Illinois
corporation, provides residential care and counsel-
ing services to adolescents at its facilities in Centra-
lia Illinois During its fiscal year ending 30 June
1984 the Respondents revenues from all sources
totaled $1,002,423 Of this sum, between $8500 to
$10,000 was received from outside of the State of
Illinois In its most recent fiscal year, the Respond
ent expended $29,932 on the purchase of utility
services from Illinois Power Company, a public
utility previously found by the Board to be directly
engaged in interstate commerce
Organizations such as the Respondent's Centra
lia, Illinois facility are considered institutions in
volved in the specialized care and custody of chil
276 NLRB No 18
HUDELSON BAPTIST CHILDRENS HOME
dren. As such, the appropriate standard for the ex-
ercise of the Board's discretionary jurisdiction re-
quires that the Respondent have annual revenues in
excess of $250,000.1 The Respondent must also fall
within the statutory jurisdiction of the Board. We
find that the Respondent meets these two require-
ments. During the fiscal year ending 30 June 1984,
the Respondent's .revenues far exceeded the
$250,000 discretionary jurisdictional standard we
have established for institutions engaged in the care
and, custody of children. Further, since, the Re-
spondent received between $8500 and $10,000 in
revenues from outside of the State of Illinois and
the Respondent expended $29,932 on the purchase
of services from the Illinois Power Company,
which is an entity in interstate commerce, the stat-
utory jurisdiction of the' Board over the Respond-
ent has been established-2
As the Board will not decline to assert jurisdic-
tion over an employer solely because it is a non-
profit, organization, nor because it is exempt from
Federal income tax requirements under Section
501(c)(3), of the Internal Revenue Code, nor be-
cause of its charitable function or worthy cause,
we will assert jurisdiction over, the Respondent.3
We find that the Respondent -is- ari employer en-
gaged in commerce within the meaning of Section
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 election held 16 April 1985, the
Union was certified on 24 April 1985 as the collec-
tive-bargaining representative of the employees in
the following appropriate unit:
INCLUDED: All' child-care workers, house-
keeping 'employees, maintenance employees,
and kitchen employees, employed by the Em-
ployer at its Centralia, Illinois facility.
EXCLUDED: All office clerical and profes-
sional employees, guards, and supervisors as
defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
' Salvation Army of Massachusetts , 271 NLRB 195 (1984), Salt & Pepper
Nursery School No 2, 222 NLRB 1295 (1976)
2 Mount St Joseph's Home for Girls, 227 NLRB 404 (1976); Catholic
Social Services , 225 NLRB 288 fn 4 (1976)
3 St Aloysius Home, 224 NLRB 1344 (1976)
B. Refusal to Bargain
127
Since 30 April 1985 the Union has-requested that
the Respondent bargain. Since 3 May 1985 the Re-
spondent has refused to bargain. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 3 May 1985 to bargain
with the Union as the exclusive collective-bargain-
ing 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 bargain on request' with the
Union, 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 ini-
tial period of the certification as beginning on the
date 'the Respondent begins to bargain in good
faith -with the Union. Mar-Jac Poultry Co., 136
NLRB .785 (1962); Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379. U.S. 817 (1964); Burnett Construction
Co., =149• NLRB 1419, 1421 (1964), 'enfd. 350 F.2d
57 (10th Cir. ,1965): '
ORDER
The National Labor Relations Board orders that
the Respondent, Hudelson Baptist Childrens Home;,
Centralia, Illinois, its officers, agents, successors,
and assigns, shall
1. Cease and desist from, •
(a), Refusing to bargain with Laborers' Interna-
tional Union of North America, AFL-CIO, Local
1274, is'the exclusive bargaining 'representative of
the employees in the bargaining unit:
(b) In' any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section. 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
, (a) On request, bargain with the' Union as the ex-
clusive representative of the'employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INCLUDED All child care workers house
keeping employees, maintenance employees,
and kitchen employees employed by the Em
ployer at its Centralia, Illinois facility
EXCLUDED All office clerical and profes
sional employees, guards, and supervisors as
defined in the Act
(b) Post at its facilities in Centralia, Illinois,
copies of the attached notice marked Appendix 4
Copies of the notice, on forms provided by the Re
gional Director for Region 14, after being signed
by the Respondents authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
CHAIRMAN DOTSON, dissenting
In accordance with my previous statements that
I would follow the policy set forth in Ming Quong
Children's Center, 210 NLRB 899 (1974) 1 I would
deny the General Counsels Motion for Summary
Judgment The Respondent is a chartable nonprof
it corporation which provides care and counseling
services to adolescents Thus, in the absence of evi
dence that this particular class of institutions has a
4 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
a] Labor Relations Board
' See my dissenting opinions in Alan Short Center 267 NLRB 886 889
(1983) and Volunteers ofAme ica Los Angeles 272 NLRB 173 (1984)
massive impact on interstate commerce, I would
decline to excercise junsdiction over any labor dis
pute involving this type of employer
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain with Laborers
International Umon of North America, AFL-CIO,
Local 1274 as the exclusive representative of the
employees in the bargaining unit
WE WILL NOT in any like or related manner
mterfere with restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
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 bargaining unit
INCLUDED All child-care workers, house
keeping employees, maintenance employees,
and kitchen employees, employed by the Em
ployer at its Centralia Illinois facility
EXCLUDED All office clericals and profes
sional employees, guards, and supervisors as
defined in the Act
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