St. Louis Comprehensive Neighborhood Health Center, Inc.

National Labor Relations Board - Board Decisions

Sep 4, 1979

244 N.L.R.B. 784 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
St. Louis Comprehensive Neighborhood Health Cen-
ter, Inc. and Service and Hospital Employees
Union, Local Union No. 50, affiliated with Service
Employees International Union, AFL-CIO. Case
14-CA- 10996
September 4, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPIIY
On May 11, 1979, Administrative Law Judge Ivar
H. Peterson issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief.
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.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order,2 as modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
I As recognized by the Administrative Law Judge, on May 18, 1977, the
Regional Director for Region 14 issued a decision and direction ofelection in
Case 14 RC-8401 which concluded, inter alia, that Respondent met the
Board's jurisdictional standards. On June 13, 1977, the Board denied Re-
spondent's requet for review. In finding here that Respondent is engaged in
commerce within the meaning of the Act and comes within the Board juris-
dictional standards, the Administrative Law Judge cited Rule 102.67(f) of
the National Labor Relations Board Rules and Regulations, Series 8. as
amended, which provides that the Board's denial of a request for review of a
regional director's action precludes the party requesting review from reliti-
gating "in any related subsequent unfair labor practice proceeding" any
issue "which was, or could have been, raised in the representation proceed-
ing."
At the time of the representation proceeding, however. Respondent was
funded indirectly by the Department of Health, Education. and Welfare
(HEW), through the Human Development Corporation (HDC), a nonprofit
corporation engaged in the operation of antipoverty programs in the St.
Louis metropolitan area. Since then Respondent has become a direct grantee
of HEW, and. as stated by the Administrative Law Judge, "HDC is no
longer in the picture."
During the hearing in this proceeding the Administrative Law Judge al-
lowed Respondent to proffer evidence regarding the change in circumstances
as a result of its direct funding by HEW, as well as the grant conditions
imposed upon Respondent by HEW. Based upon all of the evidence ad-
duced at the hearing we find that Respondent is an employer within the
meaning of the Act, and that it will effectuate the purposes of the Act to
assert jurisdiction here.
2 Respondent's request for oral argument is hereby denied because the
record, the exceptions, and the brief adequately present the issues and the
positions of the parties.
3The Administrative Law Judge inadvertently omitted from the cease-
and-desist provisions of his recommended Order the narrow injunctive lan-
guage customarily provided by the Board in cases such as this. Accordingly,
we shall modify the recommended Order and notice.
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent, St. Louis
Comprehensive Neighborhood Health Center, Inc.,
St. Louis, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Insert the following paragraph (e):
"(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL. LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the right:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of' their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOl refuse to bargain collectively
with Service and Hospital Employees Union, Lo-
cal Union No. 50, affiliated with Service Em-
ployees. International Union, AFL CIO, or any
other labor organization, as the exclusive bar-
gaining representative of all employees in the
bargaining unit heretofore found appropriate by
the National Labor Relations Board.
WE WILL NOT fail or refuse to meet with the
above-named union, or any other labor organi-
zation, upon request, to discuss the discharge of
employee William Franklin, or any other em-
ployee.
WE WILL NOT fail or refuse to supply the
Union, or any other labor organization, with in-
formation requested by it that is necessary for
the purposes of collective bargaining.
WE WIL NOT fail or refuse to meet with the
Union, or any other labor organization, and en-
gage in collective bargaining.
WE WILL NOT fail or refuse to authorize any
agent or representative to bargain with the
Union, or any labor organization so requesting.
244 NLRB No. 115
784
S'I. I.OUIS (COMNPREIHtENSIVF NE(iGBORtIOOI) HEAI.TH CFNTER
1: wiII.I. NOt in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE Wii.l., upon request, meet with the Union.
or any other labor organization. to discuss the
discharge of employee William Franklin, or any
other employee.
WE WIIt., upon request. supply the Union, or
any other Labor organization. any information
necessary for the purposes of collective bargain-
ing.
Wi wlltl. meet with the Union, or any other
Labor organization, and engage in collective bar-
gaining.
WE WVILL, upon request, authorize an agent or
representative to bargain with the Union or any
other labor organization.
All employees are free to become and remain mem-
bers of Service and Hospital Employees Union, Local
Union No. 50, affiliated with Service Employees In-
ternational Union. AFL-CIO. or any other labor or-
ganization.
ST. Louis COMPREHENSIVE NEIGHBORHOOD
HEALTH CENTER, INC.
DECISION
STATEMENT OF tHE CASE
IVAR H. PETERSON, Administrative Law Judge: This case
was heard before me in St. Louis, Missouri, on February 27
and 28, 1978, based on the complaint issued by the Acting
Regional Director for Region 14 on January 19. 1978.
which was based on the charge filed on December 15. 1977,
by Service and Hospital Employees Union, Local Union
No. 50, affiliated with Service Employees International
Union, AFL-CIO, herein called the Union. Briefly stated.
the complaint alleged that since on or about July 27. 1977.
Respondent has failed and refused to bargain collectively
with the Union as the exclusive representative of all the
employees in a unit consisting of full-time employees and
regular part-time employees including office clerical em-
ployees employed by Respondent at its St. Louis. Missouri,
facility, excluding technical employees, confidential em-
ployees, professional employees, guards, and supervisors as
defined in the Act for which the Union, in a secret-ballot
election conducted by the Regional Director for Region 14.
on or about June 17, 1977, had been designated as the ex-
clusive representative within the meaning of the Act. In
addition, the complaint alleged that since on or about July
13, 1977. the Union has been requesting Respondent to
meet and discuss the discharge of employee William Frank-
lin. a member of the bargaining unit, without success. Fi-
nally, the complaint alleged that since on or about August
22 the Union had requested Respondent to furnish it with
certain information, namely. a list of wage rates and senior-
it dates for all employees in the bargaining unit, the cur-
rent issue of Respondent's personnel manual. an, health
insurance policies and the cost of the plans presentl in
effect. pension or annuitN summary plans description. and
HEW guidelines regarding personnel policies at health cen-
ters.
The complaint further alleged that all technical employ-
ees at the St. Louis facility, excluding office clerical and
professional employees, guards, and supervisors as defined
in the Act, and all other employees, constituted an appro-
priate bargaining unit within the meaning of Section 9(b) of
the Act. and that the Union had been selected, in a secret-
ballot election held on or about July 13. 1977. as their ex-
clusive bargaining representative. The complaint further al-
leged that the Union, at all times since July 21. has been the
exclusive representative of the technical unit. and that since
on or about August 5 Respondent "has been and is refusing
to give its negotiators the authority to conduct meaningful
and good faith negotiations" with the Union with respect to
both bargaining units and, since August 22. "has failed and
refused" to supply the Union with the relevant bargaining
information requested as alleged in the complaint and set
forth above. The foregoing conduct. it is alleged, violated
Section 8(a)( ) and (5) of the Act.
In its answer dated January 25, 1977. Respondent admits
that it is a not-for-profit Missouri corporation, engaged at
its facilitN in St. Louis. Missouri, in providing health ser-
vices for residents of neighborhoods within the city and
county of St. Louis. Missouri, but Respondent denies that it
is the only health facility involved. Respondent denies that
during the year ending December 31. 1977. a representative
period, it derived gross revenues in excess of $250.000 and
purchased and caused to be transported and delivered at its
St. Louis place of business goods. supplies, and materials
valued in excess of $20.000. of which in excess of the same
amount were transported and delivered to the St. Louis fa-
cility directly from suppliers located outside the State of
Missouri. It further denies that it is a health care institution
within the meaning of Section 2(14) of the Act and an em-
ployer engaged in commerce within the meaning of Section
2(2). (6). and (7) of the Act. However. Respondent admits
that the Union is a labor organization within the meaning
of Section 2(5) of the Act, and that at one time or another
L. David Outlaw was president of the board of directors.
Morris Henderson was a project director. and Clarice Mur-
phy was a member and former president of the board of
directors. It denies the appropriateness of the bargaining
unit but admits that the Union was. as alleged in the com-
plaint, selected by the employees as the exclusive represent-
ative thereof. It denies that the Union is the statutory repre-
sentative of the employees in the unit. It denies that the
Union has been requesting Respondent. since July 13. to
meet and discuss the discharge of Franklin and to bargain
collectively. as well as the commission of any conduct viola-
tive of the Act.
Upon the basis of the entire record in the case. my obser-
vation of the witnesses as they testified, and consideration
of the briefs filed with me on April 4. 1978. by counsel for
each of the parties. I make the following:
785
DE-CISIONS Ol: NATIONAL I.ABOR RELATIONS BOARD
FINI)I(;S o) FA( I
I. JRISD)Il( IlN
While Respondent admits that it is a not-for-profit Mis-
souri corporation engaged at its facility in St. ouis in pro-
viding health services for residents of the neighborhoods
within the City of St. Louis, it denies that it comes within
the Board's jurisdictional standards. that it is a health care
institution within the meaning of Section 2(14) of the Act.
and that it is an employer engaged in commerce within the
meaning of Section 2(2). (6). and (7) of the Act. However.
on May 18. 1977. the Regional Director issued his Decision
and Direction of Election upon the Union's petition, and on
June 13. 1977. the Board denied Respondent's request for
review. Thereafter an election was conducted. and on June
27 the Union was certified as the exclusive representative in
the unit found appropriate. Rule 102.67(f) of the Board's
Rules and Regulations provides that denial of a request for
review by the Board of the action taken by the Regional
Director precludes that party "from relitigating in any re-
lated subsequent unfair labor practice proceeding. any issue
which was, or could have been, raised in the representation
proceeding." Accordingly. I find that Respondent is en-
gaged in commerce within the meaning of the Act and
comes within the Board's jurisdictional standards. Respon-
dent admits that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
I. il A ItliD UNFAIR ABOR P'RA('11-(S
Although Respondent denies that it failed and refused to
bargain collectively with the Union it is well settled, as the
Board stated in Automatic Plastic Molding Companv, 234
NLRB 681. 683 (1978), "A certified union enjoys an irre-
butable presumption of majority status during the certifica-
tion year, and . . . an employer is obligated to bargain in
good faith for at least that year .... " As pointed out by
counsel for the General Counsel in his brief, on seven occa-
sions between August 5, 1977, and January 30, 1978, the
Union requested meetings to discuss contract proposals and
accompanied many of these requests with a threat of filing
unfair labor practice charges. Respondent did agree to at-
tend one meeting. Outlaw testified that he told the represen-
tatives of the Union that Respondent was willing to negoti-
ate in good faith but that, "because of our grant conditions
and my judgment we just couldn't really negotiate anything
until we got an answer" from HEW concerning "our policy
statement and what position they were going to take." Out-
law further testified that the union representative "wanted a
date that we would sit down and talk about the proposal"
of the Union, but he told the representative he "didn't think
we could give her a date at that time, reiterating the point
that we would have to get with counsel and take a look at
what she had and then hopefully we would get a reply from
HEW to our policy statement." Pearson, a business repre-
sentative of the Union, wrote to Project Director Hender-
son on July 13, 1977. requesting "a meeting for the purpose
of discussing the termination of Bill Franklin." Potterton.
who had worked as a field representative for the Union,
testified that he asked Henderson about information that
the Union needed for negotiations. Outlaw testified that the
board of directors authorized its labor committee to meet
with the Union but did not authorize it to enter into an
agreement.
On August 5. 1977. Potterton sent a letter to Henderson
on behalf of the Union requesting a meeting "to negotiate a
labor agreement covering the wages, hours and working
conditions with the employees we represent." Henderson
replied under date of August 18. agreeing to a meeting but
with the condition that "We don't have the authority to
make agreements in these areas, however, if you will pre-
sent your proposals in writing we will forward them to ap-
propriate authorities for their consideration." In prepara-
tion for this meeting on August 22 Potterton sent a letter to
Henderson requesting certain information including a list of
employee wage rates and seniority dates, a current issue of
Respondent's personnel manual, current health insurance
policies and their costs, descriptions of any pensions or an-
nuities, and guidelines of the Department of Health. Educa-
tion, and Welfare. After receiving the August 18 letter from
Henderson. Potterton called Henderson five or six times at
Respondent's place of business but was unable to get
through to him. Henderson never returned Potterton's mes-
sages.
Being unable to reach Henderson by telephone Potterton
went to the center on or about September . After having
the receptionist announce his visit to Henderson. Potterton
waited in the reception area for about 5 minutes until he
saw Henderson coming out of another part of the building
and leaving the center. Potterton stated to Henderson that
he wanted a meeting date for contract negotiations, that the
Union needed the information which had been requested in
the letter of August 22. and that he had been trying to reach
Henderson by telephone. Potterton took out his date hook
and told Henderson that "any date is free next week, I'm
free." and asked for a date. Henderson replied that contract
negotiations were in the hands of Respondent's board of
directors, and that he would get back to Potterton. Hender-
son did not agree to a date for a negotiating meeting.
After being advised by Henderson that contract negotia-
tions were in the hands of Respondent's board on Septem-
ber 8 Potterton attended the board's regularly scheduled
meeting. Before the beginning of the meeting Potterton ap-
proached the board chairman, Clarice Murphy, and stated
that he wished to introduce himself to the board and ex-
plain the position of the Union, and that Henderson had
told him that the board was handling contract negotiations
with the Union. Murphy told Potterton to sit down, and
about 15 minutes after the meeting started Murphy told the
board that a union representative was at the meeting. The
board voted to go into executive session, and Murphy told
Potterton that he would have to leave because only board
members could attend an executive session.
Potterton left the board meeting and waited outside the
meeting room where he was met by another business agent
of the Union, Ed Wilson. At some point during the meeting
an unknown woman board member came out out of the
meeting and told Potterton that he could not "force your-
self on this board. This board's got the power, you can't tell
us what we should be doing, what we shouldn't be doing"
and, "You have got to respect this board." This board
member returned to the meeting and later Henderson came
786
ST. LOUIS COMPREHENSIVE NEIGHBORHOOD HEALTH CENTER
out of the meeting room and told Potterton, "You've really
screwed this up, Potterton, and I told you that I would take
care of it." In a letter dated September 9. 1977, Murphy
wrote to Pottertor that Respondent had recently become
directly funded by HEW. that Respondent's board had
voted to "formulate an official policy for dealing with your
organization," and that in 2 weeks the policy would be
drafted and sent to the Union. The letter concluded that
Upon the Union's review of the policy. "We will meet with
you concerning it." In a letter dated September 30 Hender-
son sent to Dr. Holman Wherritt of HEW a copy of the
policy statement and stated that Henderson wanted an
HEW reaction to this statement before Respondent sub-
mitted it to the Union. There is no record evidence that the
policy statement was ever submitted to the Union.
On October 17 William Stodghill started as trustee of the
Union. After reviewing the status of contracts with various
employers Stodghill sent a letter to Henderson on October
25 requesting a meeting "at any convenient time or place,"
"for the purpose of discussing wages, hours, and the posi-
tion of employment for the employees covered under this
certification." Stodghill threatened that unfair labor prac-
tice charges would be filed against Respondent unless a re-
sponse was received by October 31. In a letter dated Octo-
ber 28 Henderson responded to Stodghill that Respondent
had forwarded to HEW its policy statement concerning its
"position with respect to any meetings regarding collective
bargaining and the quality of such bargaining," and that
since its direct grant from HEW "we are clearing all mat-
ters of consequence through them before acting."
Stodghill's response to Henderson's October 28 letter was
to request by letter the names and addresses of Respon-
dent's board members. In a letter dated November 7 Hen-
derson supplied to Stodghill the names of Respondent's
board members and the address of the current board chair-
man, David Outlaw. Ann Spears, a business agent of the
Union, then called Outlaw, and in response to that tele-
phone conversation Stodghill drafted a November 8, 1977,
letter to Henderson with a carbon copy to Outlaw. This
letter again requested a meeting "for the purpose of discuss-
ing wages, hours and other conditions of employment,"
stated that the Union had requested such a meeting on sev-
eral occasions, and threatened unfair labor practice charges
unless Respondent replied by November I I.
In a letter dated November 10 Henderson responded,
stating that the board would meet "rather than go through
the time consuming and costly investigative process em-
ployed" by the board, that Respondent would not "discuss
substantive issue" with the Union "until we hear from
HEW," and that the meeting could be held on November
25. Because of problems that Respondent had in getting its
board members of attend this meeting the meeting was
postponed until December 7.
The December 7 meeting was attended b business agent
Spears, Henderson, Outlaw, and other members of Respon-
dent's board. The meeting began with Spears passing out
copies of the Union's contract proposals and requesting
some point-by-point discussions. Outlaw replied that the
board needed time to study the proposals, and that further
discussions would have to await the answer of HEW to
Respondent's policy statement. Spears requested that a firm
date be set for the next negotiating meeting, but Outlaw
refused: the meeting ended with Spears threatening to file
unfair labor practice charges.
In a letter dated December 13 Dr. Wherritt from HEW
responded to Respondent's policy statement, stating that
"we have had very limited experience in the area of collec-
tive bargaining relative to project personnel." that only
"rarely do supplemental funds become available." and that
in consequence if "in the event of a further agreement that
would require an increase in the funding level, you may
find it necessary to develop an additional source of funds."
So far as it appears this is the only statement in the record
of HEW's position on Respondent's collective-bargaining
obligations.
During the first 3 weeks of January 1978 Mary Bolden, a
busines agent of the Union, attempted to contact Hender-
son by telephone, but Henderson did not return any of her
calls. On January 30, 1978, trustee Stodghill sent a mail-
gram to Henderson requesting a "meeting as soon as possi-
ble" for the purpose of discussing employee contract de-
mands. Bolden credibly testified that she was not able to
reach Henderson until February 10, that he did not tell her
that he had been out of the city during the first part of
January, but that on each occasion some receptionist stated
that Henderson was in a meeting but did not state where
the meeting was being held.
Ilt. DISCUSSION AND CONCLUSIONS
Counsel for the General Counsel correctly points out in
his brief that certification creates an irrebuttable presump-
tion of majority status. As the Board stated in Automatic
Plastic Molding Company, supra, it "is established law that a
certified union enjoys an irrebutable presumption of major-
ity status during the certification year, and that an em-
ployer is obligated to bargain in good faith for at least that
year." It is clear and I find that an effect of the Regional
Director's certification was to entitle the Union to this pre-
sumption in the period at issue in this case.
I further find that rule 102.67(f) of the Board's Rules and
Regulations precludes Respondent from relitigating in this
unfair labor practice proceeding any issue which was or
could have been raised in the prior representation proceed-
ings. While Respondent may introduce evidence in this pro-
ceeding of new, material, changed facts relative to the issues
raised in the representation proceeding, Respondent is re-
quired first to meet its burden of proving that this new
evidence could not have been uncovered in the exercise of
due diligence at the time of the representation proceedings.
Contrary to the assertions made by Respondent, this rule is
neither unfair nor is it an attempt by the Board to conceal
its prior mistakes. Rather, it is an attempt to provide for the
parties due process rights while avoiding needless and inter-
minable delays caused by relitigation which would frustrate
the Section 7 rights of employees. I agree with the conten-
tion of counsel for the General Counsel that because the
Board denied Respondent's request for review of the Re-
gional Director's first Decision and Direction of Election
and because Respondnet failed to request review by the
Board of the Regional Director's second Decision and Di-
rection of Election Respondent may not relitigate the issues
787
I)EFCISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Board's jurisdiction, the appropriateness of the units,
or the status of Respondent as an employer under the Act.
The Region:ll Director found in his Decision and Direc-
tion of Election th t Respondent satisfied the jurisdictional
standards of the Board for a health care institution, and
that two units of Respondent's employees were appropriate
for purposes of collective bargaining. I agree that the Board
adopted two of these findings when it denied Respondent's
request for review of the Regional Director's first Decision
and Direction of Election. Although Respondent denied
these allegations of the complaint in its answer, it offered no
evidence to show that the facts had changed since the
Board's and Regional Director's determinations regarding
jurisdiction and the appropriateness of the units. Both
counsel for the General Counsel and Respondent offered
evidence that Respondent's revenues are substantially
equivalent to the levels existing at the time of the represen-
tation proceeding. I therefore conclude that counsel for the
General Counsel has met the burden of proving the Board's
jurisdiction and the appropriateness of the units.
At the hearing Respondent sought to relitigate the issue
of its status of' an employer under the Act because of its
relationship with HEW. Counsel for the General Counsel
objected on the grounds that the Board and the Regional
Director had specifically held in two prior representation
proceedings that Respondent maintained control of its la-
bor relations and, therefore, could not share in the exempt
status of HEW. I permitted Respondent to introduce evi-
dence that HEW requires it to submit its budget and con-
tracts to HEW for approval, that HEW exercised some con-
trol over the use of other revenues generated by the
operations of Respondent, and that the composition of Re-
spondent's board of directors is governed by HEW regula-
tions. Respondent argued that these were new facts not in
existence at the time of the prior representation proceedings
on the grounds that these were the grant conditions im-
posed by HEW upon Respondent when it became directly
funded by HEW which occurred, admittedly, after the rep-
resentation proceedings. However, it should be pointed out
that these are the same grant restrictions on Respondent's
operations which existed at the time of the representation
proceedings when Respondent was indirectly funded by
HEW through the Human Development Corporation,
herein referred to as HDC. It should be pointed out that the
Regional Director specifically found in his Decision and
Direction of Election that the format of Respondent's bud-
getary submission to HEW has not materially changed
since becoming directly funded. Therefore, Respondent
may not relitigate the effect this fact has on its status as an
employer. Moreover, the Board has held that budgetary
and fiscal oversight by a government agency over an em-
ployer which it is funding does not permit the employer to
share in the agency's exempt status. See The Workshop. In-
corporated, 233 NLRB 237 (1977).
At the time of the representation proceeding when Re-
spondent was funded indirectly by HEW through HDC a
condition of Respondent's grant was that all contracts had
to be submitted to HDC which in turn submitted them to
HEW. Accordingly, I agree with counsel for the General
Counsel that Respondent may not raise the effects of this
grant condition in this proceeding because all that has
changed since Respondent has become a direct grantee of
HEW is that HDC is no longer in the picture. However, the
argument of Respondent is that it alone has interpreted this
grant condition to require a collective-bargaining agree-
ment to be submitted to HEW for approval. Henderson
testified that Respondent has no prior experience with ei-
ther individual employment contracts or collective-bargain-
ing agreements. In the one communication from HEW that
is in the record regarding labor agreements HEW states
only that if Respondent enters into a collective-bargaining
agreement it may have to find supplemental sources of
funding in addition to the HEW grant.
HEW has always exercised the same limited control over
Respondent's use of income or revenues generated by the
operation of the center. Accordingly. I agree with counsel
for the General Counsel that Respondent may not relitigate
the effect that this control has on its status as an employer.
However, counsel for the General Counsel points out that
HEW only requires Respondent to use other revenues gen-
erated by the center for any purpose which furthers the
objectives of Respondent's operation as a neighborhood
health center. This grant condition does not impair Respon-
dent's control of its labor relations.
Finally, the Regional Director specifically found in his
Decision and Direction of Election that the "composition of
the Employer's 25 member Board of Directors is also gov-
erned by federal regulations...." Therefore, Respondent
may not relitigate the effect this fact has on its status as an
employer. However, the Board has held that the fact that
government regulations control the composition of an em-
ployer's board is not controlling in determining its status as
an employer, but that the test is rather whether a majority
of the board members are responsible to the general elector-
ate. See Southwest Texas Public Broadcasting Council, 227
NLRB 1560 (1977). There is no record evidence that any of
Respondent's board members are accountable to the gen-
eral electorate. Accordingly, I agree with counsel for the
General Counsel that Respondent may not raise these mat-
ters in this proceeding because of rule 102.67(f). Later in
the hearing Respondent argued that it was not attempting
to relitigate its status as an employer but rather was intro-
ducing the evidence of its grant conditions to show that its
agents acted in good faith, relying upon the grant condi-
tions when they refused to bargain with the Union. I agree
with counsel for the General Counsel that when the Board
found that Respondent could engage in meaningful collec-
tive bargaining and was, therefore, an employer under the
Act, these grant conditions could no longer be used as
grounds for avoiding the obligation to bargain.
In determining whether an employer is an employer un-
der the Act or it if shares the exempt status of a government
entity the Board has stated its test as whether the employer
retains control of its labor relations or whether the em-
ployer can engage in meaningful collective bargaining.
Since the representation hearings Respondent has become a
direct grantee of HEW; at the time of the earlier hearings,
Respondent received HEW grant funds through HDC.
Upon becoming a direct grantee of HEW Respondent be-
came subject to an HEW regulations which provided that
Respondent's governing board "shall have specific responsi-
7R88
ST. LOUIS COMPREHENSIVE NEIGHBORHOOD HEALTH CENtER
bility for: ... (ii) Establishing personnel policies and proce-
dures, including selection and dismissal procedures, salary
and benefit scales, employees grievance procedures, and
equal opportunity practices." Therefore. Respondent ad-
mits that the explicit effect of this HEW regulation is to
recognize that Respondent's board has authority over Re-
spondent's labor relations.
To conclude, I find that by failing to meet with the Union
to discuss the discharge of employee Franklin. by failing to
supply the Union with information necessary for the pur-
poses of collective bargaining, by failing to meet with the
Union and bargain, and by failing to authorize an agent to
bargain with the Union Respondent has engaged in con-
duct violative of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. St. Louis Comprehensive Neighborhood Health Cen-
ter. Inc.. is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and Service and
Hospital Employees Union, Local No. 50, affiliated with
Service Employees International Union, AFL CIO, is a la-
bor organization within the meaning of Section 2(5) of the
Act.
2. By failing to meet with the Union to discuss the dis-
charge of employee William Franklin. by failing to supply
the Union with information necessary for the purposes of
collective bargaining, by failing to meet with the Union and
engage in collective bargaining, and by failing to authorize
any agent or representative to bargain with the Union Re-
spondent violated Section 8(a)( ) and (5) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPO)N
COMMERCE
The activities of Respondent set forth 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 commerce.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices, it will be recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER'
The Respondent. St. Louis Comprehensive Neighbor-
hood Health Center. Inc.. St. Louis, Missouri. its officers.
agents. successors, and assigns, shall:
1. Cease and desist from:
(a) Failing to meet with the Union or any other labor
organization. upon request. to discuss the discharge of em-
ployee William Franklin or any other employee.
(b) Failing to supply the Union or any other labor or-
ganization with any information requested b it necessar%
for the purposes of collective bargaining.
(c) Failing to meet with the U nion or any other labor
organization so desiring and engage in collective bargain-
ing.
(d) Failing to authorize any agent or representative to
bargain with the Union or any labor organization so re-
questing.
2. Take the following affirmative action which is deemed
necessary to effectuate the policies of the Act:
(a) Upon request. meet with the Union or an3 other la-
bor organization to discuss the discharge of emploee Wil-
liam Franklin or an) other employee.
(b) Supply the Union or any other labor organization.
upon request. with any information necessary for the pur-
poses of collective bargaining.
(c) Meet with the Union or any other labor organization
so desiring and engage in collective bargaining.
(d) Authorize an agent or representatie to bargain with
the Union or any labor organization so requesting.
(e) Post at its premises in St. Louis. Missouri. copies of
the attached notice marked "Appendix."' Copies of said
notice, to be furnished hb the Regional Director for Region
14, after being duly signed bh a representative of Respon-
dent. shall he posted by Respondent immediately upon re-
ceipt thereof. and be maintained bh it for 60 consecutive
days thereafter, in conspicuous places. including all places
where notices to employees are customiarily% posted. Reason-
able steps shall be taken b Respondent to insure that said
notices are not altered. defaced. or covered bh any other
material.
(f) Notify the Regional Director for Region 14. in writ-
ing. within 20 days from the date of' this Order, what steps
Respondent has taken to comply herewith.
In the event no exceptions are filed as provided h) Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions. and recommended Order herein shall. as provided In Sec. 10248
of the Rules and Regulations. be adopted b the Board and become its
findings, conclusions, and Order. and all objections thereto shall he deemed
waived for all purposes
I In the event that this Order is enfored b) a Judgment of a nted States
Court of Appeals, the words in the notice reading Posted b order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States (ourt of Appeals Enforcing an order of he National
Labor Relations Board."