Occupational Center of Union County, Inc.

National Labor Relations Board - Board Decisions

Mar 4, 1981

254 N.L.R.B. 1067 (N.L.R.B. 1981)

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22-R(:-8141, the term delined Secs.
102.69(g) (he 8.
Elecrmrysrerns. Inc., (1967). F.2d
(;olden 151 (1967),
F.2d Cir . Intertype Penello. F.Supp.
(D.C.Va. Folkrt Corp., 164 (1967), F.2d
(7th Sec. 9(d) as
In
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OCCUPATIONAL CENT 'ER OF UNION COUNTY. INC
Occupational Center of Union County,
Local 1023, Communications Workers of Amer-
ica, AFL-CIO. Case 22-CA-10333
March 4, 198 1
DECISION AND ORDER
Upon a charge filed on October 14, 1980, by
Local Communications Workers of America,
AFL-CIO, herein called the Union, and duly
served on Occupational Center of Union County,
Inc., called Respondent, the General Coun-
sel of th: National Labor Relations Board, by the
Regional Director for Region 22, issued a com-
plaint on November 24, 1980, against Respondent,
alleging that Respondent had engaged in and was
engaging in unfair labor practices affecting com-
merce within the meaning of Section and
(1) and Section and (7) of the National Labor
Relations Act, as amended. Copies of the charge
and and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
alleges in substance that on August 15,
1980, following a Board election in Case 22-RC-
8 141, the Union was duly certified as exclusive col-
lective-bargaining representative of Respondent's
employee:; in the unit found appropriate;' and that,
commencing on or about August 21, 1980, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. Subsequently, Respondent
filed its to the complaint admitting in part,
and denying in part, the allegations in the com-
plaint, and asserting certain affirmative defenses.
On December 18, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December
29, 1980, 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 should not be granted. Respondent
thereafter a reply to the General Counsel's
Motion for Summary Judgment and a
Motion for Summary Judgment.
Upon entire record in this proceeding, the
Board the following:
notice is taken of record in the representation proceed-
ing. Case as "record" is in 102.68
and of Board's Rules and Regulations. Series as amended.
See LTV 166 NLRB 938 enfd. 388 683
(4th Cir. 1968); Age Beverage Co., 167 NLRB enfd. 415
26 (5th 1969); Co. v . 269 573
1967): NLRB 378 enfd. 397 91
Cir. 1968); of the NLRA. amended.
254 NLRB No. 138
Ruling on the General Counsel's Motion for

Summary Judgment and on Respondent's

Cross-Motion for Summary Judgment

its answer to the complaint, Respondent
admits that a majority of its employees in the unit
described infra selected the Union as their collec-
tive-bargaining representative, and it also admits
that it refused and continues to refuse to bargain
collectively with the Union even though the Union
has requested such bargaining. Respondent con-
tends that it is a not-for-profit corporation, and
denies that at all material times it has been continu-
ously engaged in the business of providing rehabili-
tative occupational training and related services for
mentally, emotionally, and physically handicapped
individuals. In its answer Respondent also denies
that it is engaged in commerce within the meaning
of the Act, and further denies that the unit de-
scribed infra is appropriate for collective bargain-
ing. In his memorandum in support of his Motion
for Summary Judgment, however, counsel for the
General Counsel observes that the above matters
were resolved by the Regional Director in his De-
cision and Direction of Election and by the Board
in its denial of Respondent's request for review.
Respondent further asserts as affirmative defenses
that the complaint fails to state a claim upon which
relief can be granted, that the Board's certification
is invalid, that the Board has no jurisdiction over
Respondent, and that the Board's bargaining unit
determination and subsidiary findings are contrary
to the Act, Board policy, and the facts presented in
the representation case.
In its reply to the General Counsel's motion and
in its Cross-Motion for Summary Judgment, Re-
spondent concedes that any existing factual and
legal questions are related to the underlying repre-
sentation case. In support of its motion, Respon-
dent argues that it is not an employer within the
meaning of the Act and that the unit sought is in-
appropriate.
Our review of the record herein, including the
record in Case 22-RC-8141, discloses that after a
hearing the Regional Director for Region 22 issued
his Decision and Direction of Election on July 10,
1980. Subsequently, Respondent filed a request for
review of the Decision and Direction of Election,
which the Board denied on August 7, 1980. On the
same day, a secret-ballot election was conducted,'
in which the tally was 18 for and 1 against the
Union, with 1 nondeterminative challenged ballot.
No objections were filed, and on August 15, 1980,
the Regional Director certified the Union.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or
1068
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section 8(a)(5) entitled
1,elitigate
p ro~eed ing .~
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whizh
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mak1:s
Respondent
indi-
vidui~ls
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~ e s d o n -
$50,000,
prod~~cts $50,000
- -
herein,
2(6)
meaning 2(5)
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anc Secs. 102.67(0 102.69(c).
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9(a)
8(a)(5) ( I )
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances a respondent in a proceeding
leging a violation of is not
to issues which were or could have been
litigated in a prior representation
issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does
it allege that any special circumstances exist herein
would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
General Counsel's Motion for Summary Judgment,
and we deny Respondent's Cross-Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board
the following:
I. THE BUSINESS OF RESPONDENT
is a New Jersey corporation en-
gaged in the business of providing rehabilitative oc-
cupational training and related services for mental-
ly, emotionally, and physically handicapped
at its two facilities in Roselle and Berkeley
Heights, New Jersey. In the course and conduct of
business operations during the pre-
ceding 12 months, a representative period,
dent caused to be sold and distributed at its two
centers products valued in excess of and
valued in excess of were shipped
from its centers to customers located outside the
State of New Jersey.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material
an employer engaged in commerce within
the meaning of Section and (7) of the Act, and
that it will effectuate the policies of the Act to
assert jurisdiction herein.
I I. THE LABOR ORGANIZATION INVOLVED
Local 1023, Communications Workers of Amer-
ica, AFL-CIO, is a labor organization within the
of Section of the Act.
a See Glass Co. v. N.L.R.B., 3 13 U.S.146, (1941);
Rules Regulations o f the Board, and
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 of the
Act:
All employees employed by Respondent at
its Roselle and Berkeley Heights centers in-
cluding counsellors, workshop supervisors,
workshop attendants, the chief manager, the
maintenance supervisor, the contract represen-
tative, clerical employees and employees
employed pursuant to the Comprehensive Em-
ployment and Training Act, but excluding all
professional employees, clients, the Executive
Director, the Coordinator of Professional Ser-
vices, the Plant Manager, guards and all other
supervisors as defined in the Act.
2. The certification
On August 7, 1980, a majority of the employees
of i said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 22, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on August 15, 1980, and the Union continues to be
such exclusive representative within the meaning of
Section of the Act.
B. The Request To Bargain and Respondent's

Refusal

Commencing on or about August 18, 1980, and
at all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about August 21, 1980, and continu-
ing at all times thereafter to date, 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 Respondent has, since
August 21, 1980, 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 and
of the Act.
UNFAIR
111,
intimatt:,
ant1
Havir~g
8(a)(5)
ortler
re~juest,
erclusive
signed
we
~ e s ~ o n d e n t
Company, Znc.,
d / b / a
(1962),
F.2d ('5th 1964),
Burnett
(1964), F.2d
Boivd,
Occul~ational
emplo~.er
2(6)
A.FL-CIO,
meanin!: 2(5)
ant1
anc
9(b)
9(a)
8(a)(5)
8(a)(l)
2(6)
10(c)
om-
ex-
OCCUPATIONAL CENTER OF UNION COUNTY. INC. 1069
IV. THE EFFECT OF THE LABOR gaining within the meaning of Section of the
PRACTICES UPON COMMERCE Act.
The activities of Respondent set forth in section
above, occurring in connection with its oper-
ations 'described in section I, above, have a close,
and substantial relationship to trade, traf-
fic, commerce among the several States and
tend tc lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section and (1) of the Act, we
shall that it cease and desist therefrom, and,
upon bargain collectively with the Union
as the representative of all employees in
the appropriate unit, and, if an understanding is
reached, embody such understanding in a
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, shall construe the initial period of certi-
fication as beginning on the date com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry
136 NLRB 785 (1962); Commerce Company
Lamar Hotel, 140 NLRB 226, 229 enfd. 328
600 Cir. cert. denied 379 U.S. 817;
Construction Company, 149 NLRB 1419,
1421 enfd. 350 57 (10th Cir. 1965).

The
upon the basis of the foregoing facts
and the entire record, makes the following:
1. Center of Union County, Inc., is
an engaged in commerce within the
meaning of Section and (7) of the Act.
2. Loca! 1023, Communications Workers of
America, is a labor organization within
the of Section of the Act.
3. All employees employed by Respondent at its
Roselle Berkeley Heights centers, including
counsellors, workshop supervisors, workshop atten-
dants, the chief manager, the maintenance supervi-
sor, the contract representative, office clerical em-
ployees, employees employed pursuant to the
Comprehensive Employment and Training Act, but
excluding all professional employees, clients, the
Executive Director, the Coordinator of Profession-
al Services, the Plant Manager, guards, and all
other superv sors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
4. Since August 15, 1980, 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
of the Act.
5. By refusing on or about August 21, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization 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 within the meaning of Section 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,
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 of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section and (7) of the Act.
ORDER
Pursuant to Section of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Occupational Center of Union County, Inc., Ro-
selle and Berkeley Heights, New Jersey, its
cers, 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 Local 1023, Com-
munications Workers of America, AFL-CIO, as
the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All employees employed by Respondent at
its Roselle and Berkeley Heights centers in-
cluding counsellors, workshop supervisors,
workshop attendants, the chief manager, the
maintenance supervisor, the contract represen-
tative, office clerical employees and employees
employed pursuant to the Comprehensive Em-
ployment and Training Act, but excluding all
professional employees, clients, the Executive
Director, the Coordinator of Professional Ser-
vices, the Plant Manager, guards and all other
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the
erzise
th~: Act.
thl:
Act:
{'a)
labor
wilh
(3) Roselle cen-
"Appen-
d i ~ . " ~
dull,
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(:our1
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EMPI.OYEES
ORDER
LABOR BOARD
WILL
Ro-
selle
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the rights guaranteed them in Section 7 of
2. Take the following affirmative action which
Board finds will effectuate the policies of the
Upon request, bargain with the above-named
organization as the exclusive representative
of all employees in the aforesaid appropriate unit
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.
Post at its and Berkeley Heights
ten copies of the attached notice marked
Copies of said notice, on forms provided by
the Regional Director for Region 22, after being
signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
day!; 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, de-
faced, or covered by any other material.
Notify the Regional Director for Region 22,
in within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
In event that this Order is enforced by a Judgment of a United
States of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United Stales Court of Appeals Enforcing an
Order the National Labor Relations Board."
APPENDIX
NOTICE TO

POSTED BY OF THE

NATIONAL.
RELATIONS
An Agency of the United States Government
WE W ILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Local 1023, Communications Workers of
America, AFL-CIO, as the exclusive represen-
tative of the employees in the bargaining unit
described below.
WE NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All employees employed by us at our
and Berkeley Heights centers including
counsellors, workshop supervisors, work-
shop attendants, the chief manager, the
maintenance supervisor, the contract repre-
sentative, office clerical employees and em-
ployees employed pursuant to the Compre-
hensive Employment and Training Act, but
excluding all professional employees, clients, .
the Executive Director, the Coordinator of
Professional Services, the Plant Manager,
guards and all other supervisors as defined
in the Act.