Young Women's Christian Association

National Labor Relations Board - Board Decisions

Mar 7, 1979

240 N.L.R.B. 1242 (N.L.R.B. 1979)

1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Young Women's Christian Association of Metropoli-
tan Chicago and Local 372, Child Care Division,
Service Employees International Union, AFL-CIO.
Case 13-CA 17972
March 7, 1979
DECISION AND ORDER
Upon a charge filed on August 22, 1978, by Local
372, Child Care Division, Service Employees Inter-
national Union, AFL CIO, herein called the Union,
and duly served on Young Women's Christian Asso-
ciation of Metropolitan Chicago, herein called Re-
spondent. the General Counsel of the National La-
bor Relations Board, by the Regional [Director for
Region 13, issued a complaint and notice of hearing
on September 27. 1978. against Respondent, alleging
that Respondent had engaged in, and was engaging
in, unfair labor practices affecting commerce within
the meaning of Section 8(a)(5) and (I) and Section
2(6) and (7) of the National Labor Relations Act, as
amended. Copies of the charge. complaint, and no-
tice of hearing before an administrative 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 June 8. 1978. fol-
lowing a Board election in Case 13 -RC 13637 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate:' and that, commenc-
ing on or about August 14, 1978. and at all times
thereafter, Respondent has refused, and continues to
date to refuse, to bargain collectively with the Union
as the exclusive bargaining representative, although
the Union has requested. and is requesting. it to do
so. On October 10, 1978, Respondent filed its answer
to the complaint admitting in part. and denying in
part, the allegations in the complaint.
On October 18, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on November 2.
1978, the Board issued an Order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed an opposition to the Motion for Summary
Judgment.
Official notice is taken of the record inll tihe represenlalion proceeding.
(Case 13 RC 13637, as the term "record" is defined In Sees 1()268 and
102.6 9(g) of the Board's Rules anid Regulations. Series 8. is amenlded See
L7T1' E/etrmrslzem., Inc., 166 N.RB 938 11967), enfd. 388 t'.2d 683 (4th
('it. 1968): (olden Age Beierage ( ., 167 NI.RB 151 (1967), enfd. 415 ' 2d
26 (5th (ir. 1969): Intertipc (Co. s. Penello. 269 : Supp. 573 (D (.Va.. 967):
FIolltt ('Crp.. 164 NI.RB 378 (1967), enfd 397 i2d 917th (th ir 1968): Sec
9(d) of the NI.RA, ias amended.
240 NLRB No. 176
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. Respondent admits
the factual allegations made in the General Counsel's
Motion for Summary Judgment but denies that the
unit is appropriate for collective bargaining and as-
serts affirmatively that the city of Chicago controls
Respondent's labor relations to such an extent that it
is precluded from bargaining effectively with the
Union. and that Respondent shares the exemption of
the C'ity of Chicago as provided by the Act.
In the Motion for Summary Judgment, counsel for
the General Counsel contends that all issues raised
by Respondent were previously litigated and decided
by the Board in the prior proceeding. Young
I tment'Â¥V (Chritian A..sociation of Metroplolitan ('hica-
go, 235 NLRB 788 2 that the pleadings raise no factu-
al issues litigable in this proceeding. and that sum-
mary judgment is proper. We agree.
Review of the record. including that of the under-
lying representation proceeding, 235 NLRB 106,
shows that on February 10, 1975, Local 329, Child
Division. Service Employees International Union.
AFI. CIO (Local 329). filed a petition seeking certifi-
cation as the collective-bargaining representative of
certain employees of Respondent. Following a hear-
ing. the Regional Director for Region 13 issued a
Decision and Direction of Election on May 13, 1975,
concluding that the designated unit was appropriate
for collective bargaining and that Respondent's rela-
tionship with the city of Chicago did not deprive the
Board of jurisdiction. Respondent thereafter request-
ed review of the Regional Director's decision, and by
telegraphic order dated July 3, 1975, the Board grant-
ed Respondent's request for review. On October 31.
1975, the Board issued a Decision on Review and
Order, dismissing the petition.3
On April 16, 1976. Local 372, Child Care Division,
Service Employees International Union. AFL CIO
(Local 372). the successor to Local 329, filed a peti-
tion for reconsideration and to reopen the record in
Case 13 RC 13637. On June 4, 1976, the Board is-
sued an Order granting petition for reconsideration
and remanding for hearing to receive further evi-
dence concerning the issue of whether the city of
Chicago. acting through the Model Cities CCUO,
controls labor relations policies of Respondent to the
extent that Respondent would be precluded from ef-
See al so (ihoh/ I/Oiip ( 4,,,, ( poir ioln .S,,/,, Dpiarlirtli I
t/eo.ra[ l,,rgrtima, 235 NRB 776. Mlembers Penello anid Murph 5 dissenting
sepirall\ . and t he (hlii tilt,ioti , Ir , . 25s NIRB 792, lenmhers Penelio
and MurphN discnlng cpatll.
221 Nl.RB 262
Upon the ntire record in this proceeding. the
YOUNG WOMEN'S CHRISTIAN ASSOCIATION 1243
fectively bargaining with Petitioner about working
conditions at the day care centers. 4
Following the second hearing, the Board, on April
7, 1978, issued a Decision and Direction of Election.5
finding that since Respondent controlled and man-
aged the day care centers and was responsible for the
labor relations at the centers, and since the city,
through the Model Cities CCUO, was found to
merely reimburse Respondent for the cost of operat-
ing the centers, Respondent did not share the city's
exemption under the Act and therefore Board exer-
cise of jurisdiction was proper.
The designated unit was also found to be appropri-
ate for purposes of collective bargaining in voting
groups (a) and (b) as set forth in the Board's Deci-
sion and Direction of Election of April 7. 1978.
Thereafter, on May 31, 1978, an election was held.
The tally of ballots for voting group (a) showed that
a majority of the professional employees wished to
be included in a unit of nonprofessionals, with two
employees voting for inclusion and one employee
voting against inclusion in the nonprofessional unit.
The tally of ballots for voting groups (a) and (h) re-
flected that a majority of valid votes were cast for
Local 372, with 30 employees voting for the Peti-
tioner. I against, and 1 challenged ballot.
On June 8, 1978, the Regional Director issued a
Certification of Representative certifying Local 372
as the representative of Respondent's child care em-
ployees in the unit found appropriate by the Board in
its Decision and Direction of Election of April 7.
1978. No objections to conduct affecting the results
of the election were filed.
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 representative proceeding.6
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at the hearing any newly discovered or
previously unavailable evidence: it does not 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 pro-
4 This case as remanded along swith ( hlioci RBsh of( halag., 4 ( r/po-
ration Sole. Department of Federal Progralm and he (hae tol e I n,l fn 2.
suTra.
235 NLRB 788.
See Pittshurrh Plti' (;lat ( \ I R 313 l:S 146. Ih2 11941)
Rules and Regulations of the Board. Ses. 102 7(f) and 102h 91(c)
ceeding. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FIDINS(;s OF F( I
I IltE B SIN ESS ()I RSPONDI)NI
The record indicates that the Young Women's
Christian Association of Metropolitan Chicago
(YWCA) is an Illinois nonprofit corporation engaged
in providing social services for Chicago area women
and girls. The YMCA has an annual gross revenue of
approximately $1.75 million and during a representa-
tive -year period, purchased goods and services
worth approximately $5,000 from sources outside
State of Illinois. Respondent's day care operations
account for approximately $540,000 of its gross reve-
nue and account for approximately $3,000 of the
YWCA's total purchases of goods and materials
shipped directly to Respondent from outside the
State of Illinois.
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 effectuate the policies of the Act to assert juris-
diction herein.
II l[ti I.ABOR ORGANIZATION INVOI.EDI)
L.ocal 372, Child Care Division, Service Employees
International Union, AF. CIO. is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. ltI- NAIR IABOR PRA(' (ICIS
A. The Representation Proceeding
I. The unit
The following employees of Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All child care workers. including social workers.
assistant social workers, social worker aides,
head teachers, teachers, teacher assistants,
teacher aides, food service employees, and cleri-
cal employees employed by the Employer at its
Coretta Scott King, Harriet M. Harris, and Up-
town day care centers: but excluding center di-
rectors, site directors, maintenance employees,
guards and supervisors as defined in the Act.
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The certification
On May 31, 1978, 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 13, designated the union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 8, 1978, 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 August 14, 1978, and at
all times thereafter, the Union has requested Respon-
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about August 14, 1978, and continuing at all times
thereafter to date, Respondent has refused, and con-
tinues 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 Respondent has, since
August 14, 1978, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appropri-
ate unit, and that, by such refusal, Respondent has
engaged in, and is engaging in, unfair labor practices
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
1I, above, occurring in connection with its opera-
tions described in section 1, 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
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 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 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett 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
I. Young Women's Christian Association of Met-
ropolitan Chicago is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Local 372, Child Care Division, Service Em-
ployees International Union, AFL CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
3. All child care workers including social workers,
assistant social workers, social worker aides, head
teachers, teachers, teacher assistants, teacher aides,
food service employees, and clerical employees em-
ployed by the Employer at its Coretta Scott King,
Harriet M. Harris, and Uptown day centers; but ex-
cluding center directors, site directors, maintenance
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 June 8, 1978, the above-named labor or-
ganization has been, and now is, the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on or about August 14, 1978, 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
YOUNG WOMEN'S CHRISTIAN ASSOCIATION 1245
is engaging in, unfair labor practices within the
meaning of Section 8(a)(l) 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 the Respondent,
Young Women's Christian Association of Metropoli-
tan Chicago, Chicago, Illinois, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and con-
ditions of employment with Local 372, Child Care
Division, Service Employees International Union.
AFL-CIO, as the exclusive bargaining representative
of its employees in the aforesaid appropriate unit.
(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 Coretta Scott King, Harriet M. Har-
ris, and Uptown day care facilities in the city of Chi-
cago copies of the attached notice marked "Appen-
dix." 7 Copies of said notice, on forms provided by
the Regional Director for Region 13, after being duly
signed by Respondent's representative, shall be post-
ed 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
insure that said notices are not altered, defaced, or
covered by any other material.
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 bh 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."
(c) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order.
what steps have been taken to comply herewith.
MEMBERS PENELLO and MURPHY, dissenting: We
dissent from the Board's decision to grant the Gener-
al Counsel's Motion for Summary Judgment for the
reasons stated in our separate dissenting opinions in
the underlying representation case, Young Women's
Christian Association of Metropolitan Chicago. 235
NLRB 788 (1978).
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
372. Child Care Division, Service Employers In-
ternational Union, AFL-CIO, as the exclusive
representative of the employees in the bargain-
ing 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 child care workers including social workers,
assistant social workers, social workers aides,
head teachers, teachers, teacher assistants,
teacher aides, food service employees, and cleri-
cal employees employed by the Employer at its
Coretta Scott King, Harriet M. Harris, and Up-
town day care centers; but excluding center di-
rectors, site directors, maintenance employees,
guards and supervisors as defined in the Act.
YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF
METROPOLITAN CHICAGO