St. Louis Christian Home

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1477 (N.L.R.B. 1980)

ST. LOUIS CHRISTIAN HOME 1477
St. Louis Christian Home and Nursing and Conva-
lescent Division, Local 50, Service Employees
International Union, AFL-CIO, CLC. Case 14-
CA-13849
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
Upon a charge filed on May 22, 1980, by Nurs-
ing and Convalescent Division, Local 50, Service
Employees International Union, AFL-CIO, CLC,
herein called the Union, and duly served on St.
Louis Christian Home, herein called Respondent,
the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for Region
14, issued a complaint on June 18, 1980, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair 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 and complaint and notice of hearing before
an administrative law judge were duly served on
the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on February 26,
1980, following a Board election in Case 14-RC-
9057, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about April 11, 1980, and
at all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On June 27, 1980, Respond-
ent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint.
On July 7, 1980, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on July 9, 1980, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
' Official notice is taken of the record in the representation proceed-
ing, Case 14-RC-9057, as the term "record" is defined in Secs. 102.68
and 102.69(g) of the Board's Rules and Regulations. Series 8, as amended.
See LTV Electrosystemrn Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
251 NLRB No. 195
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
Respondent's answer, in substance, attacks the
validity of the Union's certification, and asserts that
Respondent is exempt from the Board's jurisdic-
tion. The General Counsel argues that this and all
other material issues have previously been decided.
We agree with the General Counsel.
Our review of the record herein, including the
record in Case 14-RC-9057, reveals that on Janu-
ary 18, 1980, the Regional Director for Region 14
issued a Decision and Direction of Election, find-
ing, inter alia, that Respondent is an employer
within the meaning of the Act, that the impact of
Respondent's operations on interstate commerce is
sufficient to warrant assertion of the Board's juris-
diction, and that it would effectuate the policies of
the Act to take jurisdiction. Thereafter, Respond-
ent timely requested review of the decision, con-
tending that the Regional Director erred in finding
that Respondent was subject to the Board's juris-
diction. On February 14, 1980, the Board denied
Respondent's request for review, and, on the fol-
lowing day, an election was conducted among the
employees in the unit found appropriate. The tally
of ballots shows that, of approximately 22 eligible
voters, 12 cast valid ballots in favor of, and 9
against, the Union; there were no challenged bal-
lots. No objections to the election were filed and,
on February 26, 1980, the Union was certified as
the bargaining representative of the employees in
the unit found appropriate.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances, a respondent in a proceeding al-
leging a violation of Section 8(a)(5) is not entitled
to relitigate issues which were or could have been
litigated in a prior representation proceeding.2
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and 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
decision made in the representation proceeding. We
therefore find that Respondent has not raised any
2 See Pittsburgh Plate Glass Co. v N.L.R.B., 3:3 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c)
ST. LOUIS CHRISTIAN HOME 77
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue which is properly litigable in this unfair labor
practice proceeding. Accordingly, we grant the
Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent St. Louis Christian Home, a non-
profit Missouri corporation owned by the National
Benevolent Association of the Christian Church
Disciples of Christ, maintains its only office and fa-
cility in St. Louis, Missouri. Respondent is engaged
in the business of providing residential care and
therapy for abused and neglected children. In the
course and conduct of its business operations
during the past calendar year, a representative
period, Respondent derived gross revenue in excess
of $250,000, and paid in excess of $16,000 for serv-
ices received from Southwestern Bell Telephone
Company and Union Electric Company, each of
which is engaged in interstate commerce.
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 jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Nursing and Convalescent Division, Local 50,
Service Employees International Union, AFL-
CIO, CLC, 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 Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time child care
workers, maintenance employee, and store-
room clerk employed by Respondent at its
3033 North Euclid, St. Louis, Missouri, facili-
ty, excluding office clerical and professional
employees, guards and supervisors as defined
in the Act.
2. The certification
On February 15, 1980, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 14, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining repre-
sentative of the employees in said unit on February
26, 1980, and the Union continues to be such exclu-
sive representative within the meaning of Section
9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about March 25, 1980, and at
all times thereafter, the Union has requested Re-
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about April 11, 1980, and continu-
ing at all times thereafter to date, Respondent has
refused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
April 11, 1980, and at all times thereafter, refused
to bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
----- -
ST. LOUIS CHISTIAN HOME 1479
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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.), cert. denied 379 U.S. 817
(1964); Burnett 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
1. St. Louis Christian Home is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Nursing and Convalescent Division, Local 50,
Service Employees International Union, AFL-
CIO, CLC, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All full-time and regular part-time child care
workers, maintenance employee, and storeroom
clerk employed by Respondent at its 3033 North
Euclid, St. Louis, Missouri, facility, excluding
office clerical and professional employees, guards
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since February 26, 1980, the above-named
labor 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 April 11, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By the aforesaid refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
them in Section 7 of the Act, and thereby has en-
gaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning 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,
St. Louis Christian Home, St. Louis, Missouri, its
officers, 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
conditions of employment with Nursing and Con-
valescent Division, Local 50, Service Employees
International Union, AFL-CIO, CLC, as the exclu-
sive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part-time child care
workers, maintenance employee, and store-
room clerk employed by Respondent at its
3033 North Euclid, St. Louis, Missouri, facili-
ty, excluding office clerical and professional
employees, guards and supervisors as defined
in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its St. Louis, Missouri, facility copies
of the attached notice marked "Appendix." 3
Copies of said notice, on forms provided by the
Regional Director for Region 14, 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 thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
3 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 by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing and
Order of the National Labor Relations Board "
ST LOUIS CHRISTIAN HOME
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order, what steps have been taken to comply here-
with.
MEMBER PENELLO, dissenting:
Instead of granting General Counsel's Motion for
Summary Judgment, I would dismiss the complaint
in its entirety. I would not have asserted jurisdic-
tion over Respondent in the underlying representa-
tion case because it is a charitable, nonprofit, non-
commercial institution. See my dissenting opinions
in The Rhode Island Catholic Orphan Asylum a/k/a
St. Aloysius Home, 224 NLRB 1344 (1976), and
Lighthouse for the Blind of Houston, 244 NLRB No.
155 (1979).
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 Nursing and Convalescent Division,
Local 50, Service Employees International
Union, AFL-CIO, CLC, as the exclusive rep-
resentative of the employees in the bargaining
unit described below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time child care
workers, maintenance employee, and store-
room clerk employed by us at our 3033
North Euclid, St. Louis, Missouri, facility,
excluding office clerical and professional
employees, guards and supervisors as de-
fined in the Act.
ST. Louis CHRISTIAN HOME