Teams Civic Services, Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1982

262 N.L.R.B. 716 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teams Civic Services, Inc. and Local 32B-32J and
Local 144, Service Employees International
Union, AFL-CIO. Case 29-CA-9499
July 18, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on February 22, 1982, by
Local 32B-32J and Local 144, Service Employees
International Union, AFL-CIO, herein called the
Union, and duly served on Teams Civic Services,
Inc., herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 29, issued a com-
plaint on March 29, 1982, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
complaint and notice of hearing before an adminis-
trative 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 January 7,
1982, following a Board election in Case 29-RC-
5084, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;1 and
that, commencing on or about March 17, 1982,2
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On April 20, 1982,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
t Official notice is taken of the record in the representation proceed-
ing, Case 29-RC-5084, 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 Electrosysemrns. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F. Supp. 573 (D.C.
Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th
Cir. 1968); Sec. 9(d) of the NLRA, as amended.
2 While the General Counsel maintains in his Motion for Summary
Judgment that Respondent has refused to bargain collectively at all times
since on or about January 28, 1982, in its answer to the complaint, Re-
spondent contends that the Union did not make a request for bargaining
until March 3, 1982. However, Respondent also stated that at its board of
directors' meeting of March 17, 1982, it concluded that it needed more
information before it could determine whether it would agree to recog-
nize and bargain with the Union. In his Motion for Summary Judgment,
the General Counsel asserts that such a position constitutes a failure and
refusal to meet and bargain with the Union. We agree with the General
Counsel's conclusion. Accordingly, we accept March 17, 1982, as the
date from which Respondent has refused to bargain collectively.
262 NLRB No. 86
On May 5, 1982, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on May 7, 1982, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
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
In its answer to the complaint and opposition to
the Motion for Summary Judgment, Respondent
contends, inter alia, that the complaint should be
dismissed because it was improperly filed and that
the certification of the Union is invalid because the
Board improperly obtained jurisdiction over the
representation petition. Specifically, Respondent
contends that fraudulent statements and misrepre-
sentations were contained in the petition for certifi-
cation. Additionally, Respondent states that the
Hearing Officer in the representation case would
not permit any evidence to be adduced as to the
matters of alleged fraud.
Review of the record herein, including that in
the representation proceeding, Case 29-RC-5084,
establishes that, upon a petition duly filed under
Section 9(c) of the Act, a hearing was held before
a hearing officer of the National Labor Relations
Board. Thereafter, the Regional Director issued his
Decision and Direction of Elections 3 on April 10,
1981. The Regional Director found, inter alia, that
Respondent was engaged in commerce within the
meaning of the Act and met the Board's jurisdic-
tional requirements, that the Union is a labor orga-
nization within the meaning of the Act, that Re-
spondent employed a sufficiently representative
and substantial complement of employees to war-
rant the holding of an election, and that the
Union's showing of interest was sufficient to sup-
port the petition.4 On April 23, 1981, Respondent
s The underlying representation case involved petitions to represent
certain employees of both the Respondent and another employer, Home
Attendant Program of Central Harlem Meals on Wheels, Inc. The latter
employer is not a party in the present case.
4 Respondent did not and has yet to make an offer of proof to support
its allegations of fraud and deceit concerning the Union's showing of in-
terest. Although Respondent did, after considerable litigation following
the hearing, provide the Regional Director with a list of all its employ-
ees, including those not within the unit found appropriate, Respondent
admits that, despite repeated requests by the Hearing Officer, it failed to
produce payroll lists and other documents, some of which were also sub-
Continued
716
TEAMS CIVIC SERVICES
filed a request for review in which Respondent al-
leged, inter alia. that the representation petition
was filed and processed in the incorrect Regional
Office and that the evidence of a showing of inter-
est was insufficient and contained possible forger-
ies. By telegraphic order on May 12, 1981, the
Board denied Respondent's request for review.
In accordance with the Regional Director's De-
cision and Direction of Elections, a secret-ballot
election was conducted on December 15, 1981.
The tally of ballots shows that the Union won the
election. No objections to conduct affecting the re-
sults of the election were filed. On January 7, 1982,
the Regional Director issued his Certification of
Representative.
In its answer to the complaint, Respondent con-
tends that the complaint was improperly filed in
Region 29. Respondent states that a complaint must
be issued upon a charge filed in the Regional
Office covering the geographical area where the
alleged unfair labor practice took place. Respond-
ent contends that the appropriate Regional Office
is Region 2, where its principal office and place of
business is located. Section 102.10 of the Board's
Rules and Regulations provides that a charge alleg-
ing that an unfair labor practice has occurred or is
occurring in two or more Regions may be filed
with the regional directors of any such Regions.
Respondent cites no record evidence and offers no
evidence that all of its home attendants, who work
in the homes of hundreds of disabled clients, are lo-
cated within Region 2 or that none work in Region
29. Moreover, Respondent does not contend that it
has been prejudiced as a result of the alleged im-
proper filing.
In its answer to the complaint, Respondent also
denies its jurisdictional standing and the Union's
status as a labor organization. However, as noted
above, Respondent's jurisdictional standing and the
Union's status were contested in the underlying
representation proceeding and the Regional Direc-
tor found that Respondent met the Board's jurisdic-
tional requirements and that the Union is a labor
organization within the meaning of the Act. Re-
spondent offers nothing to controvert these find-
ings. Thus, it appears that Respondent is attempt-
ing to raise issues in the present case which were,
or could have been, raised in the underlying repre-
sentation case.
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-
penaed, need to determine the adequacy of the showing of interest. Be-
cause Respondent failed to offer specific evidence to support its allega-
tions of fraud or deceit, Pearl Packing Company, 116 NLRB 1489 (1956),
the Regional Director was administratively satisfied that the showing of
interest was adequate, 0. D. Jennings & Company, 68 NI.RB 516 (1946).
leging a violation of Section 8ta)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.5
All 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
which would require the Board to reexamine the
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
issue which is properly litigable in this unfair labor
practice proceeding. 6 Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent Teams Civic Services, Inc., a not-
for-profit corporation with it principal office and
place of business located at 139 West 137th Street,
New York, New York, is engaged in providing
home care to disabled persons and related services.
During the year ending December 31, 1981, a
period representative of its annual operations gen-
erally, Respondent, in the course and conduct of its
business operations, performed services valued in
excess of $500.000 under contract for the Depart-
ment of Social Services, Human Resources Admin-
istration, of the city of New York. Such services
valued in excess of $500,000 were partially fi-
nanced by and involved the interstate transfer of
substantial funds of the United States Government.
We find, on the basis of the foregoing, that Re-
spondent 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 effecuate the policies of the Act to
assert jurisdiction herein.
I See Pittrrurgh Plate Glass Co. . :..L.R B., 313 US. 146, 162 (1941);
Rules and Regulations of the Board. Sees. 102.67(f) and 102 69(c).
6 We find no merit to Respondent's denial in its answer to the com-
plaint, or its contention in its response to the Motion for Summary Judg-
ment, that it is not refusing to bargain with the Union. By insisting in this
proceeding that there still are matters to be resol ed in replv to the
Union's "Petition for Certification"-matters already considered and dis-
posed of in the underlying representation case,-Respondent clearly is
contesting the validity of the certification of representative issued the
Union and, thus, its concomitant statutory obligation to recognize and
bargain with that labor organization. Accordingly, regardless of how it
characterizes such conduct, Respondent is refusing to bargain with the
Union as the exclusive representative of the employees in the unit found
appropriate. See also fn. 2, supra.
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11. THE LABOR ORGANIZATION INVOLVED
Local 32B-32J and Local 144, Service Employ-
ees International Union, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the
Act.
Ill. 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 9(b) of the
Act:
All full-time and regular part-time attendants
employed by Teams Civic Services, Inc., ex-
cluding office clerical employees, guard and
supervisors as defined in the Act.
2. Certification
On December 15, 1981, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 29, 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 January 7, 1982, 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 3, 1982, 7 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 March 17, 1982, 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
March 17, 1982, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
7 In his Motion for Summary Judgment, the General Counsel asserts
that since on or about January 28, 1982, and at all times contiuning to
date, the Union has requested that Respondent meet and bargain with it
collectively. In its answer to the complaint, Respondent denies that such
a request was made on January 28, but admits that a request to bargain
collectively with the Union as the exclusive bargaining representative of
the employees in the unit found appropriate was made on or about
March 3, 1982. Accordingly, we accept the March 3, 1982, date.
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 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 oper-
ations described in section I, 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 commerce and the free flow of com-
merce.
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for 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 Company d/b/a
Lamar Hotel, 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:
CONCLUSIONS OF LAW
1. Teams Civic Services, Inc., is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 32B-32J and Local 144, Service Em-
ployees International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All full-time and regular part-time attendants
employed by Teams Civic Services, Inc., excluding
office clerical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
718
TEAMS CIVIC SERVICES
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since January 7, 1982, 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 17, 1982, 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 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 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Teams Civic Services, Inc., New York, New York,
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 Local 32B-32J and
Local 144, Service Employees International Union,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time attendants
employed by Teams Civic Services, Inc., ex-
cluding office clerical employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its principal office and place of busi-
ness located at 139 West 137th Street, New York,
New York, copies of the attached notice marked
"Appendix."8 Copies of said notice, on forms pro-
vided by the Regional Director for Region 29,
after being duly signed by Respondent's representa-
tive, 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 Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
a 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 Pursu-
ant 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 Local 32B-32J and Local 144, Service
Employees International Union, AFL-CIO, 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 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 full-time and regular part-time attendants
employed by Teams Civic Services, Inc., ex-
719
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding office clerical employees, guards
and supervisors as defined in the Act.
TEAMS CIVIC SERVICES, INC.