Rosemount Center

National Labor Relations Board - Board Decisions

Dec 18, 1980

253 N.L.R.B. 839 (N.L.R.B. 1980)

ROSEMOUNT CENTER
Rosemount Center and Rosemount Center Workers'
Association. Case 5-CA-12298
December 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMHERS
JENKINS AND TRUESDAI.E
Upon a charge filed on June 13, 1980, by Rose-
mount Center Workers' Association, herein called
the Union, and duly served on Rosemount Center,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 5, issued a complaint on
July 9, 1980, against Respondent, alleging that Re-
spondent had engaged in and was engaging in
unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (I) and Section
2(6) and (7) of the National Labor Relations Act,
as amended. Copies of the charge and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on May 23,
1980, following a Board election in Case 5-RC-
10816, the Union was duly certified as the exclu-
sive collective-bargaining representative of Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about June 5,
1980, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bar-
gaining representative, although the Union has re-
quested and is requesting it to do so. On July 22,
1980, Respondent filed its answer to the complaint
admitting in part, and denying in part, the allega-
tions in the complaint. Respondent admits the fac-
tual allegations of the complaint. It denies the por-
tions of the complaint that assert the sufficiency of
the certification in establishing the Union as the ex-
clusive bargaining representative in the appropriate
unit and the conclusory allegations that Respond-
ent had violated Section 8(a)(1) and (5) of the Act.
On August 12, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on August 14,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
)Official notice is taken of the record in the representation proceed-
ing, Case 5-RC-108IO1, 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 LTI Electrosystems. Inc.. 166 NL RB 98 (197), enfd 38,8 2d 681
(4th CIr. 1968), Golden 4ge Bev. ra e Co., 167 NLRB 151 (1967), enfd 415
F.2d 26 (th Cir 1969); Interrvpe Co v Penelie. 269 F Supp 571
(D.C Va 1967); Iolitt Corp., 1,4 Nl.RB 378 1967). enid 397 F 2d 91
(7th Cir 1968)1; Sec. 9(d) of the NLRA. as amended
253 NLRB No. 105
Cause why the General Counsel's Motion for Sum-
mary Judgment should not he granted. Re'pondent
thereafter contemporaneously filed n response to
Notice To Show Cause, and a Cross-Motion for
Summary Judgment with a brief in support thereof.
On September 15, 1980, counsel for the General
Counsel filed a response to Respondent s Cross-
Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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
As described above, Respondent's answer to the
complaint admits in part, and denies in part, the al-
legations of the complaint. In its answer to the
Notice To Show Cause and Cross-Motion for Sum-
mary Judgment, Respondent renews its contentions
that the family home mothers and the CETA em-
ployees were improperly included in the unit. It
relies not only on arguments advanced in the un-
derlying representation proceeding but also asserts
that "there is new evidence, not available at the
representation hearing" that entitles Respondent to
summary judgment as a matter of law and that the
certification be vacated.
A review of the record reveals that, pursuant to
a Stipulation for Certification Upon Consent Elec-
tion in Case 5-RC-10816 an election was hild on
May 15, 1980, in the appropriate voting groups.
The tallies of ballots showed that the professional
employees voted for inclusion in the unit and that,
of approximately 36 total eligible voters, 28 cast
ballots for, and 2 against, the Petitioner. There
were no void or challenged ballots. On May 23,
1980, the Regional Director for Region 5 issued
the Certification of Representative.
On May 24, 1980, the Union sent a letter to Re-
spondent requesting that Respondent meet with it
for the purposes of collective bargaining. On June
5, 1980, Respondent sent a letter to the Union in
which it declined to meet and bargain with the
Union.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have heerr
litigated in a prior representation proceeding.2
2 See Pittbhurgh Plate Gla. (Co. V 1 R. 31 i 5 14t" 16 (1941);
Rule, and Regulations of the Board, Sees 102 67t1) and 102.6(c)
839
I)ECISIONS OF NATIONAL ILABOR RELATIONS B()OARI)
In its Cross-Motion for Summary Judgment, Re-
spondent contends, inter alia, that there is "new
evidence, not available at the representation hear-
ing" that shows that the family home mothers are
independent contractors and that the family home
mothers and CETA employees were included im-
properly in the bargaining unit. Respondent further
contends that the evidence requires that the certifi-
cation be vacated and entitles Respondent to sum-
mary judgment as a matter of law. In support of its
contentions, Respondent relies, inter alia, on al-
leged new evidence showing changes in its budget
and program that affect the training of, and its fur-
nishing of equipment and assistance to, the family
home mothers. Respondent also points to its failure
to receive a 1979-80 CETA grant and its failure to
apply for a 1980-81 CETA grant as well as the re-
duction of the number of family home mothers and
CETA employees from the time of the hearing to
the election to the filing of its cross-motion.
We find no merit in Respondent's contentions.
Respondent seeks to relitigate the issue of the ap-
propriateness of the inclusion of the family home
mothers and the CETA employees in the unit certi-
fied in the underlying representation proceeding.
Many of the contentions and much of the evidence
relied on by Respondent in its cross-motion was
considered in the Board's Decision on Review and
Direction of Election.3 As to Respondent's conten-
tions in the cross-motion predicated on alleged
"new evidence, not available at the representation
hearing," we note that Respondent has failed to
specify when certain of this evidence became avail-
able 4 and fails to explain the delay for coming for-
ward now with other alleged new evidence that
appears to have been available during the time the
Board was considering the underlying representa-
tion proceeding. 5 Moreover, we note that Re-
spondent failed to mention such alleged new evi-
dence in its answer to the complaint in this unfair
labor practice proceeding. 6 In the circumstances
here, we find that the alleged evidence should nlot
be considered newly discovered or previously un-
available evidence and does not constitute special
circumstances warranting the relitigation of issues
raised in the underlying representation proceed-
3 248 NI R 122 11 0))
Exampiles include (I) changes I1 ti e nature of traininlg larmlly iihoile
motlhers, (2) changes in the practice of furnishing supplilcs to famil hoill
mothers and (3) increased pressure b CETA adminitrators to, hire
CITA employees
Exanilples nclude: (!) nol equipment pur hased for family hlone
mothers beginning in (tobe l)979, (2) no cniergen or vacation assist.
ance to am)v home mothers beginng in Norember 179, and (1) i a-
prircent wage icrea:e t CETA employees in ()ctober 1'i7'i
" It appears front Ithe papers filed in this proceeding thiat Resl ndenll
previously presented this alleged ne, tcvidrlnice II, the Rcglonal ) tor
after the charge wase filed Ho,secr. Respoldelnt first ro-oluhi tis iI-
leged new evidence to the Board's alttrltloll In t crioss-nlilO ll
ing.7 Accordingly. we deny Respondent's Cross-
Motion for Summary Judgment and grant the Gen-
eral Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINE SS OF RESPONDENT
Respondent is a nonprofit corporation in the Dis-
trict of Columbia that provides child day care serv-
ices to nembers of the public at its sole facility lo-
cated in the District of Columbia. The complaint
alleges, and Respondent's answer admits, that Re-
spondent is, and has been at all times material
herein, an employer as defiled in Section 2(2) of
the Act, engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Accordingly, we
find that it will effectuate the policies of the Act to
assert jurisdiction herein.
11. THE ABOR ORGANIZATION INVOI.VED
Rosemount Center Workers' Association is a
labor organization within the meaning of Section
2(5) of the Act.
11. TIlE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
I. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the mellaning of Section 9(b) of the
Act:
All full-time and regular part-time teacher/
staff developers, teachers, cooks, child devel-
opment unit coordinators, child development
workers, junior teachers, family home moth-
ers, and employees employed pursuant to the
Comprehensive Employment and Training Act
employed at the Employer's District of Co-
lumbia facility, but excluding office clerical
employees, and supervisors as defined in the
Act.
2. The certification
On May 5, 1980. a majority of the employees of
Respondent in said unit, in a secret-ballot election
; See .Snohio Ptrolum Cio Ia )iviin (il Shio Natural Rewiurcn (.
239 NI R 281 (1978) (Member Jenkins dlissenting n other eroiiunds)
Other allcgt el nrew e idenle relied (on hb, Respnldenlt e g the termila-
tloll My 19I80 o i faliily home mother ho n11Iw colntracts dihrctly
Wilh palellt f r child caire sen r\ es arid the Illlcrc.lsed Liust If aduiiilinltla
tiI va I,,e I' joh hiritiilni hs (' I '\ eriplNts hetseen i-hriuarv arid
Aiigui i98 IS6 I iniIfl'cni to sarranil ia, change in the earlier iioad
[)C IlHI I RC~%leI."
840
ROSEMOUNT CENTER
conducted under the supervision of the Regional
Director for Region 5, 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 May 23, 1980, 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 May 24, 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 June 5, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, 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
June 5, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the apprk-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
IV. THEI- :F. ECT OF 'I HE UNFAIR I ABOR
PRAC'IICES U PON ( MMI RCIE
The activities of Respondent set forth in section
111, above, occurring in connection with its oper-
ations described in section 1, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commierce and the free ou of com-
merce.
V. THE RMI.DY
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent tor the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate unit. See Mar-Jac Poultry Company, Inc.,
136 NLRB 785 (1962); Commerce Comnpany d/hb/a
Lamar HIotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction 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:
CONCILUSIONS OF L.AW
1. Rosemount Center is an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Rosemount Center Workers' Association is a
labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time teacher/
staff developers, teachers, cooks, child develop-
menit unit coordinators, child development work-
ers, junior teachers, family home mothers and em-
ployees employed pursuant to the Comprehensive
Employment and Training Act employed at the
Employer's District of Columbia facility; but ex-
cluding office clerical employees 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 May 23, 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 tile meaning of Section )(a)
of the Act.
5. By refusing on or about June 5, 1980, 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 prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent 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 mind is engaging in unfair labor practices
Within the meaningi of Section 8(a)(1) ()f the Act.
T. he aforesatd unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(0) and (7) of the Act.
841
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Rosemount Center, Washington, D.C., 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 Rosemount Center
Workers' Association as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time and regular part-time teacher/
staff developers, teachers, cooks, child devel-
opment unit coordinators, child development
worers, junior teachers, family home mothers,
and employees employed pursuant to the Com-
prehensive Employment and Training Act em-
ployed at the Employer's District of Columbia
facility, but excluding office clerical employ-
ees, and supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing mployees in the ex-
ercise of the rights guaranteed them in Section 7 of
the Act.
2. Take the fllowing 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Washiligton, D.C., facility copies
of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 5, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
8 In the event that this OrJer is enforced by a Judgment of a IUnited
States Court of Appeals, the words in the notice reading "Posted By
Order of the National Labor Rciat>,ll, Boald" shall read i']otc il Pursu-
ant To : Judgment of tIlc U;.itcd Statci Court of Appeals Fllforcing art
Order of the Naional Lahbor Relalions ,xrd"
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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 5, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
APPENDIX
NOTICE To EMPI.OYli ES
POSTED BY ORDER OF THE
NATIONAl. LABOR RIElATIONS BOARD
An Agency of the United States Government
Wi WI.l. NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Rosemount Center Workers' Association,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WILl.L 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 wil.l., 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 full-time and regular part-time teacher/
staff developers, teachers, cooks, child de-
velopment unit coordinators, child develop-
ment workers, junior teachers, family home
mothers, and employees employed pursuant
to the Comprehensive Employment and
Training Act employed at the Employer's
District of Columbia facility, but excluding
office clerical employees, and supervisors as
defined in the Act.
ROSEMOUNT CENTER
842