J. Arthur Trudeau Center

National Labor Relations Board - Board Decisions

Oct 31, 1977

233 N.L.R.B. 151 (N.L.R.B. 1977)

J. ARTHUR TRUDEAU CENTER
The Kent County Association for Retarded Citizens
d/b/a J. Arthur Trudeau Center and Trudeau
Center Employees Union, AFT. Case 1-CA-12943
October 31, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
Upon a charge duly filed on March 31, 1977, by
Trudeau Center Employees Union, AFT, herein
called the Union, and duly served on The Kent
County Association for Retarded Citizens d/b/a J.
Arthur Trudeau Center, herein called the Respon-
dent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 1, issued a complaint and notice of hearing
on April 21, 1977, against Respondent, alleging that
Respondent had engaged in and was engaging in
unfair 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
complaint alleges in substance that on March 3,
1977, following a Board election in Case I-RC-
14265, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; 1 and that,
commencing on or about March 24, 1977, and at all
times thereafter, Respondent has refused, and con-
tinues 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 3, 1977, Respondent filed its
answer admitting in part and denying in part, the
allegations in the complaint.
On May 12, 1977, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment which asserts that all issues raised by
Respondent were or could have been litigated in the
representation case and may not be relitigated here.
Subsequently, on June 3, 1977, the Board issued an
order transferring the proceeding to the Board and a
Notice To Show Cause why the General Counsel's
Motion for Summary Judgment should not be
granted. On July 7, 1977, Respondent filed a
I Official notice is taken of the record in the representation proceeding,
Case I-RC-14265. as the term "record" is defined in Sees. 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);
233 NLRB No. 33
memorandum in response to Notice To Show Cause
why General Counsel's Motion for Summary Judg-
ment should not be granted.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its response to the Notice To Show Cause
Respondent contends that (1) the Board is without
jurisdiction because Respondent is not a "health care
institution" within the meaning of Section 2(14) of
the National Labor Relations Act, as amended, and
(2) in any event, a hearing is necessary to establish
legal jurisdiction because (a) there was no showing in
the prior representation proceeding that Respon-
dent's operations "affect commerce" within the
meaning of Section 2(7) of the Act, and (b) the Board
has made no finding with respect to the requisite
$50,000 "inflow-outflow" test.
In the representation proceeding the Board, follow-
ing its decision in The Rhode Island Catholic Orphan
Asylum, a/k/a St. Aloysius Home, 224 NLRB 1344
(1976), asserted jurisdiction over Respondent without
regard to whether it is a health care institution.2
Respondent has presented no cogent basis for us to
reconsider this ruling at this time. The representation
proceeding also disposed of Respondent's claim with
respect to legal jurisdiction. At the hearing on the
representation petition, Respondent conceded that it
had an annual budget of approximately $617,000,
that its expenditures "may fall within a 10 percent
category of dollars being expended in interstate
commerce for supplies, materials and other things
. ." and that,
Based upon those allegations, it is the feeling of
the Employer that the Employer is engaged in an
activity covered by the provision of the National
Labor Relations Act, and that the National Labor
Relations Board probably has jurisdiction.
In addition, the record also shows that, during the
previous years, Respondent received from the city of
Warwick, Rhode Island, the sum of $64,539 under
the Comprehensive Employment and Training Act3
(C.E.T.A.). These funds are received by the city of
Warwick directly from the Federal Government. The
Follerr Corp., 164 NLRB 378 (1967). enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
2 227 NLRB 1439(1977).
3 Comprehensive Employment and Training Act of 1973, P.L. 93-203, 87
Stat. 839.
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that Respondent received such federally funded
moneys is sufficient, standing alone, to establish
statutory jurisdiction over Respondent's operations.4
Inasmuch as Respondent raises no other conten-
tion in response to the Notice To Show Cause, and it
is clear that the representation case record establishes
that the Board has jurisdiction over Respondent, we
shall grant the Motion for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a not-for-profit Rhode Island corporation
with its principal office and place of business at
Warwick, Rhode Island, where it is engaged in the
operation of a rehabilitation and training center for
retarded children and adults. For the calendar year
1976, Respondent had a projected gross revenue of
$617,000, expended approximately $61,700 to pur-
chase supplies and materials from sources in inter-
state commerce, and received and expended as part
of its operating budget the sum of $64,539 from the
federally funded C.E.T.A. program.
We find, on the basis of the foregoing, that
Respondent 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.
11. THE LABOR ORGANIZATION INVOLVED
Trudeau Center Employees Union, AFT, 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 the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All employees including teacher aides, workshop
supervisors, bus drivers, truckdrivers, janitors,
special education teachers, the nurse, the physical
therapists, the social workers, the assistant work-
shop director, and the assistant recreation direc-
4 Catholic Social Services, 225 NLR B 288 (1976), Eavt Oakland Communi-
ty HealthAlliance, 218 NLRB 1270, 1271 (1975).
tor employed by Respondent, but excluding office
clerical employees, consultants, Group Home
employees, C.E.T.A. employees, guards and
supervisors as defined in the Act.
2. The certification
On February 23, 1977, 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 1, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on March 3, 1977, 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 March 16, 1977, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about March 24, 1977, and continuing
at all times thereafter to date, the Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in said
unit.
Accordingly, we find that the Respondent has,
since March 24, 1977, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate unit, and that, by such refusal, Respon-
dent has 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 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,
intimate, 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 com-
merce.
152
J. ARTHUR TRUDEAU CENTER
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, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized 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 (C.A. 5, 1964), cert. denied 379 U.S. 817
(1964); Burnett 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. The Kent County Association for Retarded
Citizens d/b/a J. Arthur Trudeau Center is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. T rudeau Center Employees Union, AFT, is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All employees including teacher aides, work-
shop supervisors, bus drivers, truckdrivers, janitors,
special education teachers, the nurse, the physical
therapists, the social workers, the assistant workshop
director, and the assistant recreation director em-
ployed by Respondent, but excluding office clerical
employees, consultants, Group Home employees,
C.E.T.A. employees, guards and supervisors as
defined in the Act constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since March 3, 1977, the above-named labor
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 March 24, 1977, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX5) of the Act.
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees 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
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
Relations Board hereby orders that the Respondent,
The Kent County Association for Retarded Citizens
d/b/a J. Arthur Trudeau Center, Warwick, Rhode
Island, 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 Trudeau Center
Employees Union, AFT, as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All employees including teacher aides, workshop
supervisors, bus drivers, truckdrivers, janitors,
special education teachers, the nurse, the physical
therapists, the social workers, the assistant work-
shop director, and the assistant recreation direc-
tor employed by Respondent, but excluding office
clerical employees, consultants, Group Home
employees, C.E.T.A. employees, 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:
(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.
153
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its facility at Warwick, Rhode Island,
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional Director for Region 1, 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 Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER MURPHY, dissenting:
For the reasons set forth in my dissenting opinion
in The Kent County Association for Retarded Citizens
d/b/a J. Arthur Trudeau Center, 227 NLRB 1439
(1977), I would not assert jurisdiction over Respon-
dent's operations. Accordingly, I dissent from my
colleagues' conclusion that Respondent has violated
Section 8(a)(5) and (1) of the Act.
$ 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."
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 Tru-
deau Center Employees Union, AFT, 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
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive 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 agree-
ment. The bargaining unit is:
All employees including teacher aides, work-
shop supervisors, bus drivers, truckdrivers,
janitors, special education teachers, the
nurse, the physical therapists, the social
workers, the assistant workshop director,
and the assistant recreation director, but
excluding office clerical employees, consul-
tants, group home employees, C.E.T.A.
employees, guards and supervisors as de-
fined in the Act.
THE KENT COUNTY
ASSOCIATION FOR
RETARDED CITIZENS
D/B/A J. ARTHUR
TRUDEAU CENTER
154