Volunteers of America

National Labor Relations Board - Board Decisions

Apr 17, 1984

269 N.L.R.B. 1049 (N.L.R.B. 1984)

VOLUNTEERS OF AMERICA
Volunteers of America-Minnesota-Bar None Boys
Ranch and Teamsters Local No. 638, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 18-CA-8542
17 April 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
Upon a charge filed by the Union 1 December
1983, the General Counsel of the National Labor
Relations Board issued a complaint 5 December
1983 against the Respondent, alleging that it has
violated Section 8(a)(5) and (1) of the National
Labor Relations Act.
The complaint alleges that on 6 October 1983,
following a Board election in Case 18-RC-13483,
the Union was certified as the exclusive collective-
bargaining representative of the Respondent's em-
ployees in the unit found appropriate. (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), amended
Sept. 9, 1981, 46 Fed. Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982)). The complaint fur-
ther alleges that since 20 October 1983 the Re-
spondent has refused to bargain with the Union.
On 15 December 1983 the Respondent filed its
answer admitting in part and denying in part the
allegations in the complaint.
On 11 January 1984 the General Counsel filed a
Motion for Summary Judgment. On 19 January
1984 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.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
In its response to the Motion for Summary Judg-
ment, the Respondent argues that the National
Labor Relations Board does not have jurisdiction
over it because the Volunteers of America is a reli-
gious church engaged primarily in a religious mis-
sion. In his Decision and Direction of Election,
issued 1 September 1983, in the representation pro-
ceeding,' the Acting Regional Director for Region
18 concluded that jurisdiction should be asserted
over the Respondent. He determined that the Re-
spondent is an unincorporated nonprofit unit of the
i The hearing in the representation case was held 19 August 1983.
269 NLRB No. 176
National Society of Volunteers of America (the
National Society). He further determined that the
Respondent provides an essentially secular charita-
ble service in a nonsectarian manner; that patient
eligibility and employee hiring for the Respondent
are without regard to religious affiliation; that the
employees in the petitioned-for unit are not re-
quired to join the National Society; and that their
duties do not include propagation of the National
Society's substantive religious convictions. By tele-
gram dated 28 September 1983, the Board denied
Respondent's Request for Review.
It is well settled that in the absence of newly dis-
covered and previously unavailable evidence or
special circumstances, a respondent in a proceeding
alleging a violation of Section 8(a)(5) is not entitled
to relitigate issues that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to
adduce any newly discovered and previously un-
available evidence. Nor does it allege any special
circumstances that would require the Board to re-
examine the decision made in the representation
proceeding. We therefore find that the Respondent
has not raised any issue that is properly litigable in
this unfair labor practice proceeding. Accordingly
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an unincorporated nonprofit
unit of the National Society of Volunteers of
America, which is an incorporated, nonprofit, reli-
gious, and charitable organization, operates a co-
educational residential treatment facility for chil-
dren and adolescents with emotional, neurological,
and developmental difficulties at its facility in
Anoka, Minnesota. During the 12-month period
ending 30 June 1983, the Respondent derived gross
revenues in excess of $500,000, of which approxi-
mately $100,000 came directly from sources outside
the State of Minnesota. We find that the Respond-
ent is an employer engaged in commerce within
the meaning of Section 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.
1049
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held 29 September 1983
the Union was certified 6 October 1983 as the col-
lective-bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time mainte-
nance, laundry, housekeeping and childcare
workers employed by the Employer at its fa-
cility located at 22426 St. Francis Boulevard,
Anoka, Minnesota; excluding office clerical
employees, professional employees, managerial
employees, confidential employees, and guards
and supervisors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 19 October 1983 the Union has requested
the Respondent to bargain, and since 20 October
1983 the Respondent has refused. We find that this
refusal constitutes an unlawful refusal to bargain in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 20 October 1983 to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appro-
priate unit, the Respondent has engaged in unfair
labor practices affecting commerce within the
meaning of Section 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.
To ensure that the employees are accorded the
services of their selected bargaining agent for the
period provided by law, we shall construe the ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that
the Respondent, Volunteers of America-Minneso-
ta-Bar None Boys Ranch, Anoka, Minnesota, its of-
ficers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with Teamsters Local
No. 638, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America as the exclusive bargaining
representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time mainte-
nance, laundry, housekeeping and childcare
workers employed by the Employer at its fa-
cility located at 22426 St. Francis Boulevard,
Anoka, Minnesota; excluding office clerical
employees, professional employees, managerial
employees, confidential employees, and guards
and supervisors as defined in the Act.
(b) Post at its facility in Anoka, Minnesota,
copies of the attached notice marked "Appendix."2
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt 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 altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
s 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1050
VOLUNTEERS OF AMERICA
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with Teamsters
Local No. 638, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America as the exclusive rep-
resentative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise 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 in the bargaining unit:
All full-time and regular part-time mainte-
nance, laundry, housekeeping and childcare
workers employed by the Employer at its fa-
cility located at 22426 St. Francis Boulevard,
Anoka, Minnesota; excluding office clerical
employees, professional employees, managerial
employees, confidential employees, and guards
and supervisors as defined in the Act.
VOLUNTEERS OF AMERICA-MINNE-
SOTA-BAR NONE BOYS RANCH
1051