The Woods Schools

National Labor Relations Board - Board Decisions

Feb 27, 1976

222 N.L.R.B. 1124 (N.L.R.B. 1976)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Woods Schools and American Federation of
Teachers, AFL-CIO. Case 4-CA-7630
February 27, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon a charge filed on October 6, 1975, and
amended on October 22, 1975, by American Federa-
tion of Teachers, AFL-CIO, herein called the Union,
and duly served on The Woods Schools, herein
called the Respondent, the Acting General Counsel
of the National Labor Relations Board, herein called
General Counsel, by the Regional Director for Re-
gion 4, issued a complaint and notice of hearing on
October 22, 1975, against Respondent, alleging that
Respondent had engaged in and was engaging in un-
fair labor practices affecting commerce within the
meaning of Section 8(a)(5) and (1) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended. Copies of the charge, amended charge,
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 com-
plaint alleges in substance that on September 15,
1975, following a Board election, in Case
4-RC-11507 the Union was duly certified as the ex-
clusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate;I and that, commencing on or about October 1,
1975, and at all times thereafter, Respondent has re-
fused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On November 4, 1975,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On November 26, 1975, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment and a memorandum in support.
Subsequently, on December 12, 1975, the Board is-
sued an order transferring the proceeding to the
Board and a Notice To Show Cause why the General
Counsel's Motion for Summary Judgment should not
1 Official notice is taken of the record in the representation proceeding,
Case 4-RC-11507, as the term "record" is defined in Sees. 102 68 and
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc, 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C A 4,
1968), Golden Age Beverage Co, 167 NLRB 151 (1967), enfd 415 F.2d 26
(C.A 5, 1969); Intertype Co v. Penello, 269 F.Supp 573 (D.C. Va, 1967),
Follett Corp., 164 NLRB 378 (1967), enfd 397 F 2d 91 (C A 7, 1968), Sec
9(d) of the NLRA
be granted. Respondent thereafter filed a response to
Notice To Show Cause entitled, "Statement In Op-
position To Motion For Summary Judgment" and
accompanied by a memorandum in support.
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 response to the
Notice To Show Cause, Respondent in substance (1)
denies the representative status of the Union based
on its contention that it is not a health care institu-
tion under Section 2(14) of the Act, (2) demands
proof that it is engaged in commerce, and(3) denies
the appropriateness of the unit. Respondent further
contends that a hearing is required to resolve disput-
ed facts. In the Motion for Summary Judgment and
memorandum in support, counsel for the General
Counsel contends that Respondent is merely contest-
ing findings made in the prior representation case
and fails to raise any issues warranting a hearing. We
agree.
The record indicates that, after a hearing before a
Hearing Officer on the Union's representation peti-
tion in Case 4-RC-11507, the Regional Director on
May 15, 1975, issued an order transferring the case to
the Board. The parties thereafter filed briefs with the
Board. The Union urged the Board to assert jurisdic-
tion, contending that Respondent falls within the de-
finition of a "health care institution" under Section
2(14) of the Act or, alternatively, that Respondent is
a school and the impact of its operations on com-
merce is sufficiently substantial to warrant assertion
of the Board's jurisdiction. On the other hand, Re-
spondent contended that its facility is not a "health
care institution" within the Act, that it is a school but
should not be governed by the jurisdictional stan-
dards applied to private in-residence schools for
"normal" students, and that, as a matter of policy,
the Board should decline to assert jurisdiction under
the rationale of its decision in Ming Quong Children's
Center.2
On July 18, 1975, the Board, having found the
Hearing Officer's rulings to be free from prejudical
error, affirmed the rulings and issued a Decision and
Direction of Election.' In its decision, the Board
found, inter alga, that (1) Respondent's facility was a
health care institution within the meaning of Section
'210 NLRB 899 (1974)
3219 NLRB No 31.
222 NLRB No. 169
THE WOODS SCHOOLS
2(14) of the Act; (2) inasmuch as Respondent's gross
annual income exceeds the $250,000 discretionary ju-
risdictional standard applied to nonprofit health care
institutions, the impact of the Respondent's opera-
tions on commerce is sufficient to assert jurisdiction
and will effectuate the policies of the Act to do so;
and (3) the unit, as stipulated by the parties, was
appropriate. In addition, having found that
Respondent's facility falls within the definition of a
health care institution under Section 2(14) of the Act,
the Board found it unnecessary to consider whether
Respondent is also an educational institution. Ac-
cordingly, the Board directed an election held on
September 5, 1975, in which the Union received a
majority of the votes cast with no challenged ballots.
Thereupon, the Regional Director, in the absence of
objections, certified the Union on September 15,
1975. It thus appears that Respondent is raising here
the identical issues considered and determined in the
representation proceeding.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding .4
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision made in the representation proceeding. We
therefore- find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding.
With respect to Respondent's contention that a
hearing should be held, we note that the Respondent
had a hearing in the prior representation case, on the
issues raised in this proceeding. We therefore find its
contention to be without merit as evidentiary hear-
ings are not required in unfair labor practice cases
and summary judgment is appropriate where, as
here, there are no properly litigable issues of fact to
be resolved.' We shall, accordingly, grant the Motion
for Summary Judgment.
On the basis of the entire record, the Board makes
the following:
4See Pittsburgh Plate Glass Co. v NLRB, 313 U.S 146, 162 (1941),
Rules and Regulations of the Board, Secs. 102.67(f) and 102 .69(c).
s Locust Industries, 221 NLRB No 85 (1975); Janler Plastic Mold Corpo-
ration, 191 NLRB 162 (1971)
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
1125
Respondent is a nonprofit Pennsylvania corpora-
tion which provides treatment for mentally retarded
and- handicapped individuals at its Langhorne, Penn-
sylvania, facility. During the past year, Respondent's
gross annual income for its services exceeded
$250,000. During the same period, Respondent pur-
chased goods valued in excess of $50,000 from firms
located in Pennsylvania and said firms received the
goods from outside Pennsylvania.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein 6
II. THE LABOR ORGANIZATION INVOLVED
American Federation of Teachers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act:
All teachers, counselors, evaluators and teachers
aides employed by the Respondent at its Lang-
horne, Pennsylvania facility, including teachers
at the `-`Larchwood" unit, but excluding the part-
time adult education teacher, office clerical, cus-
todial and confidential employees, guards and
supervisors as defined in the Act.
2. The certification
On September 5, 1975, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 4, designated the Union as their
representative for the purpose of collective bargain-
6 In its answer and response Respondent denies that it may be character-
ized as a facility which "provides treatment" and asserts that it is a school.
As noted above, the Board in its Decision and Direction of Election found
it unnecessary to consider whether Respondent is an educational institution.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on September 15, 1975, 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 September 26, 1975, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all the
employees in the above-described unit. Commencing
on or about October 1, 1975, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit.
Accordingly, we find that the Respondent has,
since October 1, 1975, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate 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 opera-
tions described in section I, above, have a close, inti-
mate, 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.
V. THE REMEDY
Having found that Respondent has engaged in and
is- engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136
NLRB 785 (1962); Commerce Company d/b/a Lamar
Hotel, .140 NLRB 226, 229 (1-962), enfd. 328 F.2d 600
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following: -
CONCLUSIONS OF LAW
1. The Woods School is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. American Federation of Teachers, AFL-CIO,
is a labor organization within the meaning of Section
2(5) of the Act.
3. All teachers, counselors, evaluators and teach-
ers aides employed by the Respondent at its Lang-
horne, Pennsylvania facility, including teachers at
the "Larchwood" unit, but excluding the part-time
adult education teacher, office clerical, custodial and
confidential employees, guards and supervisors as
defined in the Act constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since September 15, 1975, the above-named la-
bor 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 October 1, 1975, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Re-
spondent in the appropriate unit, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, The
THE WOODS SCHOOLS 1127
Woods Schools, Langhorne, Pennsylvania, its offi-
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 con-
ditions of employment with American Federation of
Teachers, AFL-CIO, as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate unit:
All teachers, counselors, evaluators and teachers
aids employed by the Respondent at its Lang-
horne, Pennsylvania facility, including teachers
at the "Larchwood" unit, but excluding the part-
time adult education teacher, office clerical, cus-
todial and confidential employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following-affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours; and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its Langhorne, Pennsylvania, facility,
copies of the attached notice marked "Appendix" 7
Copies of said notice, on forms provided by the Re-
gional Director for Region 4, after being duly signed
by Respondent's representative, shall be posted_ by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily. posted. Rea-
7In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 4, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
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
American Federation of Teachers, 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 employees
in, the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, hours, and other terms and conditions of
employment,- and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All teachers, counselors, evaluators and teach-
er aides employed by the Respondent at its
Langhorne, Pennsylvania -facility, including
teachers at the "Larchwood" unit, but exclud-
ing the part-time- adult education teacher, of-
fice clerical, custodial and confidential em-
ployees, guards and supervisors as defined in
the Act.,
THE WOODS SCHOOLS