United Cerebral Palsy of New York City

National Labor Relations Board - Board Decisions

Sep 28, 2004

343 N.L.R.B. 1 (N.L.R.B. 2004)

UNITED CEREBRAL PALSY OF NEW YORK CITY
343 NLRB No. 1
1
United Cerebral Palsy of New York City, Inc. and
United Federation of Teachers, Local 2, Ameri-
can Federation of Teachers, AFL–CIO. Case 29–
CA–24569
September 28, 2004
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ing. Pursuant to a charge filed on October 25, 2001,1 the
General Counsel issued the complaint and an amendment
to the complaint on December 7, 2001, and January 11,
2002, respectively, alleging that the Respondent has vio-
lated Section 8(a)(5) and (1) of the Act by refusing the
Union’s request to bargain following the Union’s certifi-
cation in Case 29–RC–9578.2 (Official notice is taken of
the “record” in the representation proceeding as defined
in the Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer to the complaint and to the
amendment to the complaint admitting in part and deny-
ing in part the allegations in the complaint as amended,
and alleging an affirmative defense.
On June 28, 2004, the General Counsel filed a second
Motion for Summary Judgment. On July 2, 2004, the
Board issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the motion
should not be granted. The Respondent filed a response.

1 The Respondent’s answer to the complaint denies the allegation
that the charge was filed. The General Counsel, however, has attached
copies of the charge and affidavits of service of the charge as exhibits
to the second Motion for Summary Judgment, and the Respondent has
not challenged the authenticity of those exhibits. Accordingly, it is
clear that the charges were filed and served as alleged.
2 On January 28, 2002, counsel for the General Counsel filed a Mo-
tion for Summary Judgment. On February 1, 2002, the Board issued an
order transferring the proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. On February 15, 2002,
the Respondent filed a Cross-Motion for Summary Judgment, contend-
ing that in light of the United States Supreme Court’s decision in NLRB
v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001), the
Board should find that all the individuals in the two voting groups
(teachers, habilitation specialists, developmental specialists, and pool
coordinators) are statutory supervisors. By unpublished Order dated
October 29, 2002, the Board denied both the General Counsel’s and
Respondent’s motions and ordered the Region to reopen the record in
Case 29–RC–9578 for further consideration of whether the disputed
employees are supervisors in light of Kentucky River and other cases.
On August 6, 2003, the Acting Regional Director issued a Supplemen-
tal Decision in Case 29–RC–9578, finding that the disputed employees
are not supervisors. On September 2, 2003, the Respondent filed a
request for review of the Supplemental Decision, which the Board
denied by unpublished Order dated May 28, 2004.
The Union filed a brief in support of the General Coun-
sel’s second motion.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Second Motion for Summary Judgment
The Respondent admits its refusal to bargain and to
furnish information, but contests the validity of the certi-
fication based on its contention, raised and rejected in the
representation proceeding, that the bargaining unit im-
properly includes statutory supervisors.3
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding. We
therefore find that the Respondent has not raised any
representation issue that is properly litigable in this un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
We also find that there are no factual issues warranting
a hearing with respect to the Union’s request for infor-
mation. The complaint alleges, and the Respondent’s
answer admits, that the Union requested the following
information about the bargaining unit employees from
the Respondent by letter dated May 17, 2001:

3 The Respondent’s answer effectively denies the complaint allega-
tion that the Union is a labor organization within the meaning of Sec.
2(5) of the Act. This denial, however, does not raise any issue warrant-
ing a hearing. The Respondent stipulated in the representation proceed-
ing in Case 29–RC–9513 that the Union is a Sec. 2(5) labor organiza-
tion, and the Respondent did not contest the Union’s labor organization
status in the underlying representation case (Case 29–RC–9578).
The Respondent’s answer also denies par. 6 of the complaint, which,
as amended, sets forth the combined appropriate unit. However, the
appropriateness of the unit was considered and determined by the
Board and Regional Director in the underlying representation proceed-
ing. Accordingly, we find that the appropriate unit is as stated in the
amended complaint and the Respondent’s denial does not raise any
litigable issues in this proceeding.
In addition, the Respondent’s answer denies or effectively denies
various other allegations in the complaint, including the allegation that
the Union has been the exclusive representative pursuant to Sec. 9(a) of
unit A and the combined unit; the allegation that on November 27,
2000, the Union filed a petition in Case 29–RC–9578; and allegations
regarding the April 26, 2001 election in Case 29–RC–9578. However,
the General Counsel has submitted documentary evidence supporting
each of these allegations, including the certifications of representative
issued by the Board in Cases 29–RC–9513 and 29–RC–9578; the No-
vember 27, 2000 petition filed by the Union; and the tally of ballots in
the April 26, 2001 election, and the Respondent has not disputed the
authenticity of any of these documents in response to the Notice to
Show Cause. Accordingly, we find that the Respondent’s denials do not
raise any issue warranting a hearing. United Electrical Contractors
Assn., 312 NLRB 1118 (1993).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(a) name;
(b) title;
(c) date of hire;
(d) regular work week hours;
(e) regular work year (10 month, 12 month, or
other);
(f) vacation entitlement;
(g) current regular annual salary, educational
credentials and prior work experience;
(h) date, amount and reason for most recent pay
increase;
(i) amount of supplemental pay (above the regu-
lar annual salary) earned between July 1, 1999, and
June 30, 2000, and the reason (e.g. summer school
employment, overtime earnings, signing bonus,
merit increase, etc.);
(j) health plan coverage (individual or family);
(k) participation in 403 B plan (yes or no);
(l) job descriptions for each title; and
(m) current UCP pay grades applicable to these
titles.
Although the Respondent’s answer denies that the in-
formation requested is necessary and relevant to the Un-
ion’s duties as the exclusive bargaining representative of
the unit employees, it is well established that all of the
foregoing types of information are presumptively rele-
vant for purposes of collective bargaining and must be
furnished on request. See, e.g., Cheboygan Health Care
Center, 338 NLRB 802 (2003); Baker Concrete Con-
struction, 338 NLRB No. 48 (2002) (not reported in
Board volumes), and cases cited therein. The Respon-
dent has not asserted any basis for rebutting the presump-
tive relevance of the information, apart from its conten-
tion, rejected above, that the Union’s certification is in-
valid.
In its response to the Notice to Show Cause, the Re-
spondent seeks to excuse its failure to comply with the
Union’s May 17, 2001 information request on the basis
that it was engaged in litigation to test the validity of the
Union’s certification as bargaining representative. There
is no merit in the Respondent’s defense. It is well settled
that collateral litigation does not suspend the duty to bar-
gain. See generally Dresser Industries, 252 NLRB 631,
632 (1980), enfd. as modified 654 F.2d 944 (4th Cir.
1981). The duty to bargain encompasses the duty to pro-
vide relevant information. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co.,
351 U.S. 149, 153 (1956). Thus, the Respondent was
obligated to comply with the Union’s information re-
quest, notwithstanding that it was testing the Union’s
certification. L.F. Strassheim Co., 171 NLRB 916
(1968).
Accordingly, we grant the General Counsel’s Motion
for Summary Judgment, and will order the Respondent to
bargain and to furnish the information requested by the
Union.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a domestic cor-
poration, with its principal office and place of business
located at 80 Maiden Lane, New York, New York, and
with treatment facilities in various locations including
those located at 160 and 175 Lawrence Avenue, Brook-
lyn, New York (the Brooklyn facilities), has been en-
gaged in providing treatment and other services to people
with cerebral palsy and other disabilities. During the 12-
month period preceding issuance of the complaint, which
period is representative of its annual operations gener-
ally, the Respondent, in the course and conduct of its
business operations described above, derived gross reve-
nues in excess of $500,000 and purchased and received
at its Brooklyn facilities products, goods, and materials
valued in excess of $5000 directly from points located
outside the State of New York. We find that the Re-
spondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
At all material times, the Union has been the desig-
nated exclusive collective-bargaining representative of
the following unit (unit A), which is an appropriate unit
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
All full-time and regular part-time physicians’ assis-
tants, computer training specialists, occupational thera-
pists, physical therapists, registered nurses, physicians,
psychologists, speech pathologists, audiologists, dieti-
cians, social workers, assistant teachers, habilitation as-
sistants, program assistants, administrative assistants,
recreation assistants, social worker assistants, certified
occupational therapist assistants, physical therapist as-
sistants, licensed practical nurses, custodians, and sup-
portive employment specialists employed by the Em-
ployer at its facilities located at 160 Lawrence Avenue,
Brooklyn, New York, and 175 Lawrence Avenue,
Brooklyn, New York, excluding all confidential em-
ployees, office clerical employees, managerial employ-
ees, guards and supervisors as defined in Section 2(11)
of the Act.
UNITED CEREBRAL PALSY OF NEW YORK CITY 3
On April 26, 2001, the Board conducted self-
determination elections in the following two voting
groups to determine whether the employees desired to be
included in unit A:
Professional Voting Group: All full-time and regular
part-time teachers employed in Respondent’s early in-
tervention program, pre-school program, and school-
age program employed by Respondent at the Brooklyn
facilities, excluding all other employees and supervi-
sors as defined in the Act.
Non-Professional Voting Group: All full-time and
regular part-time daycare teachers, habilitation special-
ists, developmental specialists and pool coordinators
employed by Respondent at the Brooklyn facilities, ex-
cluding all other employees and supervisors as defined
in the Act.
A majority of each voting group voted for the Union
and for inclusion in unit A. On May 10, 2001, the Re-
gional Director certified the Union. The following com-
bination of employees (the combined unit), constitutes a
unit appropriate for the purposes of collective bargaining
under Section 9(b) of the Act:
All full-time and regular part-time physicians’ assis-
tants, computer training specialists, occupational thera-
pists, physical therapists, registered nurses, physicians,
psychologists, speech pathologists, audiologists, dieti-
cians, social workers, assistant teachers, habilitation as-
sistants, program assistants, administrative assistants,
recreation assistants, social worker assistants, certified
occupational therapist assistants, physical therapist as-
sistants, licensed practical nurses, custodians, suppor-
tive employment specialists, day-care teachers, habilita-
tion specialists, developmental specialists, pool coordi-
nators, teachers employed in Respondent’s early inter-
vention program, pre-school program, and school-age
program at the Brooklyn facilities, excluding all confi-
dential employees, office clerical employees, manage-
rial employees, guards and supervisors as defined in
Section 2(11) of the Act.
At all times since April 26, 2001, based on Section
9(a) of the Act, the Union has been and continues to be
the exclusive collective-bargaining representative of the
combined unit.
B. Refusal to Bargain
About May 17, 2001, the Union, by letter, requested
the Respondent to bargain and to furnish necessary and
relevant information, and, since May 22, 2001, the Re-
spondent has failed and refused to do so. We find that the
Respondent’s conduct constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By failing and refusing on and after May 22, 2001, to
bargain with the Union as the exclusive collective-
bargaining representative of employees in the appropriate
unit and to furnish the Union necessary and relevant in-
formation, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act, we shall order it to cease and
desist, to bargain on request with the Union and, if an
understanding is reached, to embody the understanding
in a signed agreement. We shall also order the Respon-
dent to furnish the Union the information it requested
relating to unit employees.4
ORDER
The National Labor Relations Board orders that the
Respondent, United Cerebral Palsy of New York City,
Inc., New York, New York, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to bargain with United Federa-
tion of Teachers, Local 2, American Federation of
Teachers, AFL–CIO, as the exclusive bargaining repre-
sentative of the employees in the bargaining unit, and
refusing to furnish the Union information that is relevant
and necessary to its role as the exclusive bargaining rep-
resentative of the unit employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the following group of employees as
part of the appropriate unit of employees employed by
the Respondent on terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement:

4 The General Counsel has requested that the Board require the Re-
spondent to bargain in good faith with the Union as the exclusive repre-
sentative of the unit for the period set forth in Mar-Jac Poultry Co., 136
NLRB 785 (1962). We find that such a remedy would be inappropriate
in this case, where the underlying representation proceeding involved a
self-determination election. See Edward J. DeBartolo Corp., 315
NLRB 1170, 1171 fn. 3 (1994).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
All full-time and regular part-time day-care teachers,
habilitation specialists, developmental specialists, pool
coordinators, teachers employed in Respondent’s early
intervention program, pre-school program, and school-
age program at the Brooklyn facilities, excluding all
confidential employees, office clerical employees,
managerial employees, guards and supervisors as de-
fined in Section 2(11) of the Act.
(b) Furnish the Union the information that it requested
on May 17, 2001, relating to the above-listed unit em-
ployees.
(c) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached notice marked “Appendix.”5 Copies of the notice,
on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since May 22,
2001.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union

5 If 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with United Federation
of Teachers, Local 2, American Federation of Teachers,
AFL–CIO, as the exclusive representative of the employ-
ees in the bargaining unit, and WE WILL NOT refuse to
furnish the Union information that is relevant and neces-
sary to its role as the exclusive bargaining representative
of the unit employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees set forth
below as part of the appropriate unit of employees em-
ployed by us in the bargaining unit:
All full-time and regular part-time day-care teachers,
habilitation specialists, developmental specialists, pool
coordinators, teachers employed in Respondent’s early
intervention program, pre-school program, and school-
age program at the Brooklyn facilities, excluding all
confidential employees, office clerical employees,
managerial employees, guards and supervisors as de-
fined in Section 2(11) of the Act.
WE WILL furnish the Union the information it re-
quested on May 17, 2001.
UNITED CEREBRAL PALSY OF NEW YORK CITY,
INC.