East Bronx NAACP Child Dev. Ctr.

National Labor Relations Board - Administrative Judge Opinions

May 8, 2008

02-CA-038622 (N.L.R.B. May. 8, 2008)

JD(NY)-17-08
Bronx, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
EAST BRONX NAACP CHILD
DEVELOPMENT CENTER, INC.
and Case No. 2-CA-38622
DISTRICT COUNCIL 1707, AFSCME
Jamie Rucker, Esq., New York, NY, Counsel for the General Counsel.
Harvey S. Mars, LLC, New York, NY, for the Charging Party.
DECISION
Statement of the Case
STEVEN DAVIS, Administrative Law Judge. Based on a charge filed on January 24,
20081 by District Council 1707, AFSCME (Union) a complaint was issued on March 13 against
East Bronx NAACP Child Development Center, Inc. (Respondent). On May 28, a hearing was
held before me in New York, NY.
The complaint alleges essentially that the Respondent failed and refused to bargain with
the Union as the exclusive collective-bargaining representative of its unit employees, and also
delayed paying unit employees their wages in violation of Section 8(a)(1) and (5) of the Act.
On March 13, the Regional Office sent the complaint to the wrong address, 113 Colgate
Avenue instead of to 1113 Colgate Avenue. This error was corrected on March 27 when the
charge was mailed by first class mail. It was not returned to the Regional Office as undelivered.
On the same date the complaint were sent to the correct address by certified mail, return receipt
requested. Postal records in evidence show that the U.S. Postal Service notified the
Respondent on March 29 that this mail was available at the Post Office, and that as of April 15 it
was not claimed by the addressee. Subsequently the envelope bearing the complaint was
returned to the Regional Office.
Section 102.20 of the Board’s Rules and Regulations provides that the Respondent must
file an answer to the complaint within 14 days from the service of the complaint, and that if it
fails to do so, all the allegations of the complaint shall be deemed to be admitted to be true and
shall be so found by the Board. The complaint repeated the language set forth in Section
102.20, and stated that the Respondent was required to file an answer on or before March 27,
2008, and that, if no answer was filed, the Board may find, pursuant to a Motion for Default
Judgment, that the allegations in the complaint are true.
No answer to the complaint was received, and on April 14, counsel for the General
Counsel sent a letter by first-class mail to the Respondent at its correct address advising it of its
failure to file an answer. The letter informed the Respondent that the time to file an answer was
voluntarily extended to April 21, and that if no answer was received he would seek a default

1 All dates hereafter are in 2008 except as otherwise stated.
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judgment or move for summary judgment at the April 28 hearing. The letter advised that all
allegations in the complaint not specifically denied or explained in any answer that was filed
shall be deemed to be admitted to be true and shall be so found by the Board. The letter was
not returned to the Regional Office as undelivered. No answer was received thereafter.
At the hearing, the counsel for the General Counsel made a Motion for Default Judgment
based on the Respondent’s failure to file an answer. The Respondent made no appearance at
the hearing. In view of the Respondent’s failure to file an answer, I granted the Motion. In
addition, counsel for the Charging Party stated at the hearing that a federal mediator told him
that the Respondent advised the mediator that it was “not willing to continue negotiations or to
seek conciliation.” This demonstrates that the Respondent has had no interest in contesting this
matter or in meeting its obligation to bargain in good faith with the Union.
Based upon the fact that no answer having been filed denying any of the allegations of
the complaint, all such allegations are deemed to be admitted to be true. Upon the evidence
presented in this proceeding, I make the following:
Findings of Fact
I. Jurisdiction
The complaint alleges and I find that the Respondent, a New York not-for-profit
corporation having its office and place of business at 1113 Colgate Avenue, Bronx, New York;
67 Metropolitan Oval, Bronx, New York; and 1891 McGraw Avenue, Bronx, New York, has been
engaged in the business of providing child care. During the past year, the Respondent
purchased and received at its facilities goods and materials valued in excess of $5,000 directly
from points outside New York State, and during that same period of time has derived gross
revenues in excess of $250,000 from the conduct of its operations. I accordingly find that the
Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act. I also find that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. The Alleged Unfair Labor Practices
A. The Certification
On June 21, 2007, the Union was certified as the exclusive collective-bargaining
representative of the employees in the following appropriate collective-bargaining unit:
All full-time and regular part-time employees, including social
workers, teachers, special education teachers, universal pre-k
coordinators, assistant teachers, service coordinators, clerical
staff/secretaries, cooks, assistant cooks, and custodians
employed by Respondent at 1113 Colgate Avenue, Bronx, New
York; 67 Metropolitan Oval, Bronx, New York; and 1891 McGraw
Avenue, Bronx, New York, and excluding all other employees,
including confidential employees, and guards and supervisors as
defined in the Act.
At all times since June 21, 2007, based on Section 9(a) of the Act, the Union has been
the exclusive collective-bargaining representative of the employees in the above unit.
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B. The Refusal to Bargain
On or about June 26, 2007, November 13, 2007, and December 17, 2007, the Union, by
its counsel Harvey S. Mars, requested that the Respondent bargain collectively with the Union
as the exclusive collective-bargaining representative of the employees in the unit with respect to
their rates of pay, wages, hours of employment and other terms and conditions of employment.
Since on or about December 12, 2007, the Respondent has failed and refused to
bargain with the Union as the exclusive collective-bargaining representative of the employees in
the above unit.
C. The Delay in Paying Wages
On or about December 12, 2007, the Respondent delayed paying unit employees their
wages. The subject of timely payment of wages relates too wages, hours, and other terms and
conditions of employment of the Unit and is a mandatory subject for the purposes of collective-
bargaining.
The Respondent engaged in such conduct without prior notice to the Union and without
affording the Union an opportunity to bargain with the Respondent with respect to this conduct.
Conclusions of Law
By failing and refusing on and after February 13, 2006, to bargain with the Union as the
exclusive collective-bargaining representative of its employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
By delaying the payment of wages to its unit employees without prior notice to the Union
and without affording the Union an opportunity to bargain with the Respondent with respect to
this conduct, such timely payment of wages being a mandatory subject of bargaining, the
Respondent has engaged in unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act.
The Respondent, by the acts and conduct described above, has been failing and
refusing to bargain collectively with the exclusive collective-bargaining representative of its
employees in violation of Section 8(a)(1) and (5) of the Act.
Remedy
Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, I 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 the law, I shall, as requested in the complaint, construe the
initial period of the certification as beginning on 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
222, 229 (1962), enfd. 328 F. 2d 600 (5th Cir. 1064), cert. denied 379 U.S. 81 (1964); Burnett
Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
On these findings of fact and conclusions of law and on the entire record, I issue the
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following recommended2
ORDER
The Respondent, East Bronx NAACP Child Development Center, Inc., its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with District Council 1707, AFSCME as the exclusive
collective-bargaining representative of the employees in the following appropriate collective-
bargaining unit.
All full-time and regular part-time employees, including social
workers, teachers, special education teachers, universal pre-k
coordinators, assistant teachers, service coordinators, clerical
staff/secretaries, cooks, assistant cooks, and custodians
employed by Respondent at 1113 Colgate Avenue, Bronx, New
York; 67 Metropolitan Oval, Bronx, New York; and 1891 McGraw
Avenue, Bronx, New York, and excluding all other employees,
including confidential employees, and guards and supervisors as
defined in the Act.
(b) Delaying paying unit employees their wages.
(c) In any like or related manner interfering with, restraining, 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 collectively with District Council 1707, AFSCME as the exclusive
representative of the employees in the following appropriate unit concerning terms and
conditions of employment and, if an understanding is reached, embody the understanding in a
signed agreement. The initial period of the certification shall be construed as beginning on the
date the Respondent begins to bargain in good faith with the Union:
All full-time and regular part-time employees, including social
workers, teachers, special education teachers, universal pre-k
coordinators, assistant teachers, service coordinators, clerical
staff/secretaries, cooks, assistant cooks, and custodians
employed by Respondent at 1113 Colgate Avenue, Bronx, New
York; 67 Metropolitan Oval, Bronx, New York; and 1891 McGraw
Avenue, Bronx, New York, and excluding all other employees,
including confidential employees, and guards and supervisors as
defined in the Act.

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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(b) Make timely payments of wages to its employees.
(c) Within 14 days after service by the Region, post at its facilities in the Bronx, New
York, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 2, 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 altered,
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 facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
February 13, 2006.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.
Dated, Washington, D.C., May 8, 2008
____________________
Steven Davis
Administrative Law Judge

3 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 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.”
JD(NY)-17-08
Bronx, NY
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 Federal labor law and has ordered us to post and
obey this Notice.
WE WILL NOT refuse to bargain collectively with District Council 1707, AFSCME as your exclusive collective-
bargaining representative in the following appropriate collective-bargaining unit.
All full-time and regular part-time employees, including social workers, teachers,
special education teachers, universal pre-k coordinators, assistant teachers,
service coordinators, clerical staff/secretaries, cooks, assistant cooks, and
custodians employed by Respondent at 1113 Colgate Avenue, Bronx, New York;
67 Metropolitan Oval, Bronx, New York; and 1891 McGraw Avenue, Bronx, New
York, and excluding all other employees, including confidential employees, and
guards and supervisors as defined in the Act.
WE WILL NOT delay paying you your wages.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights
guaranteed by Section 7 of the Act.
WE WILL on request, bargain collectively with District Council 1707, AFSCME as your exclusive representative in the
following appropriate unit concerning 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 employees, including social workers, teachers,
special education teachers, universal pre-k coordinators, assistant teachers,
service coordinators, clerical staff/secretaries, cooks, assistant cooks, and
custodians employed by Respondent at 1113 Colgate Avenue, Bronx, New York;
67 Metropolitan Oval, Bronx, New York; and 1891 McGraw Avenue, Bronx, New
York, and excluding all other employees, including confidential employees, and
guards and supervisors as defined in the Act.
WE WILL pay your wages on a timely basis.
EAST BRONX NAACP CHILD DEVELOPMENT CENTER, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act. It conducts
secret-ballot elections to determine whether employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614
New York, New York 10278-0104
Hours: 8:45 a.m. to 5:15 p.m.
212-264-0300.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 212-264-0346.