Strafford Guidance Center, Inc., The

National Labor Relations Board - Board Decisions

Mar 31, 1981

255 N.L.R.B. 397 (N.L.R.B. 1981)

THE STRAFFORD GUIDANCE CENTER. INC. 397
The Strafford Guidance Center, Inc. and Service
Employees International Union Local 285,
AFL-CIO, CLC. Case -CA- 17999
March 31, 1981
DECISION AND ORDER
Upon a charge filed on October 27, 1980, by
Service Employees International Union Local 285,
AFL-CIO, CLC, herein called the Union, and
duly served on The Strafford Guidance Center,
Inc., herein called the Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 1, issued a com-
plaint on November 4, 1980, against the Respond-
ent, alleging that the 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 April 10,
1980, following a Board election in Case -RC-
16657, the Union was duly certified as the exclu-
sive collective-bargaining representative of the Re-
spondent's employees in the unit found appropri-
ate;' and that, commencing on or about October
23, 1980, and at all times thereafter, the Respond-
ent has refused, and continues to date to refuse, to
bargain collectively with the Union as the exclu-
sive bargaining representative, although the Union
has requested and is requesting it to do so. On No-
vember 12, 1980, the Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint, and asserting
as an affirmative defense that the Board lacks juris-
diction over the Respondent and that the certifica-
tion was invalid because the Regional Director and
the Board erroneously overruled the Respondent's
objections to the election in Case -RC-16657.
On December 22, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Thereafter, the Respondent
filed an objection to the Motion for Summary
Judgment. Subsequently, on January 7, 1981, the
Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why
Official notice is taken of the record in the representation proceed-
ing, Case -RC-16657, as the term "record" is defined in Secs. 102.68
and 10
2.69(g) of the Board's Rules and Regulations, Series 8, as amended.
See LTV Electrosystems. 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); Inrertype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968): Sec. 9(d) of the NLRA, as amended.
255 NLRB No. 47
the General Counsel's Motion for Summary Judg-
ment should not be granted. The Respondent filed
a response to the Notice To Show Cause.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
Examination of the record shows that, pursuant
to a petition filed by the Union in Case -RC-
16657, a hearing was held, and thereafter on De-
cember 31, 1979, the Acting Regional Director
issued a Decision and Direction of Elections. The
Decision and Direction of Elections set out in
detail the facts concerning the Respondent's oper-
ations that provide community mental health serv-
ices under a contract with the Division of Mental
Health of the State of New Hampshire, and fully
discussed the Respondent's contention that the
Board should not assert jurisdiction because of the
Respondent's relationship with the State of New
Hampshire. Applying the Board's "right of con-
trol" test explicated in National Transportation Serv-
ice, Inc., 240 NLRB 565 (1979), the Acting Region-
al Director found that the Respondent was an em-
ployer within the meaning of Section 2(2) of the
Act, and operated with a sufficient degree of con-
trol of its labor relations policy to be able to bar-
gain effectively. 2 He further found that the Re-
spondent was a health care institution within the
meaning of Section 2(14) of the Act, and met the
Board's discretionary standards for asserting juris-
diction established in East Oakland Community
Health Alliance, Inc., 218 NLRB 1270 (1975). Ac-
cordingly, he found that the Respondent's oper-
ations affect commerce within the meaning of the
Act, and that it would effectuate the purposes of
the Act to assert jurisdiction.
The Board denied a request by the Respondent
to grant review of the Acting Regional Director's
Decision and Direction of Elections.
On January 24, 1980, a Sonotone-type3 election
was conducted, in which professional employees
voted to be included in a unit with nonprofessional
employees, and a majority of the combined votes
were cast for the Union.
The Respondent filed objections to the election,
asserting that the Union had made material misrep-
2 The Respondent's board of directors, which does not include public
officials, establishes programs and policies; and an executive director.
hired by the directors, supervises the programs on a day-to-day basis.
While the State of New Hampshire exercises some control over the Re-
spondent through the budgetary process, general operating guidelines,
and certain minimum standards, the Acting Regional Director found that
the Respondent has substantial autonomy with respect to hiring, firing,
supervising, disciplining, assigning work, and adjusting grievances, and
has considerable latitude in setting wages
: Sonotone Corporation. 90 NLRB 1236 (1950).
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentations which tended to have a significant
impact on the election, and that issuance of com-
plaint against the Respondent in another case on
the day preceding the election had interfered with
the proper atmosphere of the election. The Acting
Regional Director overruled the objections and
certified the Union as bargaining representative in a
supplemental decision dated April 10, 1980.
The Respondent excepted to the supplemental
decision on objections, and again raised the ques-
tion of jurisdiction. It requested the Board to re-
verse the previous determination to assert jurisdic-
tion and to set aside the original Decision and Di-
rection of Elections. In the event that request was
not granted, the Respondent urged the Board to set
aside the supplemental decision and certification
and order a new election. Later the Respondent
filed a motion to submit supplemental authority and
a motion for leave to submit supplemental authori-
ty.
The Board denied the Respondent's motions and
the request for review of the supplemental deci-
sion.
In this refusal-to-bargain case, the Respondent
contends that the Union was improperly certified,
and requests the Board to reconsider its assertion
of jurisdiction and its overruling of objections. The
Respondent argues that the National Transportation
jurisdictional test should be reconsidered by the
Board as it has proved unworkable, and also takes
the position that the test was improperly applied in
these proceedings.
We cannot accept the Respondent's defenses. We
have previously considered its jurisdictional argu-
ments and denied its request that we review the
original decision asserting jurisdiction, and we see
no reason to reconsider the jurisdictional test
adopted in National Transportation.4 We have also
previously denied the Respondent's request that we
review the supplemental decision overruling objec-
tions.
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.5
All issues raised by the Respondent in this
proceeding were or could have been litigated
in the prior representation proceeding, and the
4 See our more recent decisions discussing National Transportation: The
New York Institute for the Education of the Blind, 254 NLRB No 85
(1981); Gaithersburg-Washington Grove Fire Dept.. Inc., 251 NLRB 294
(1980); Soy City Bus Services. Division of R. W Harmon & Sons, Inc., 249
NLRB 1169(1980)
5 See Pittsburgh Plate Glass Co. v. N.L.R.B. 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
Respondent does not offer to adduce at a hear-
ing any newly discovered or previously un-
available evidence, nor does it allege that any
special circumstances exist herein which
would require the Board to reexamine the de-
cision made in the representation proceeding.
We therefore find that the Respondent has not
raised any issue which is properly litigable in
this unfair labor practice proceeding.
On the basis of our disposition of the Respond-
ent's defenses and the Respondent's admission of its
refusal to bargain, we shall grant the General
Counsel's Motion for Summary Judgment.
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a corporation organized under
the laws of the State of New Hampshire, maintains
its principal office and facility at 576 Central
Avenue, Dover, New Hampshire, and other facili-
ties at 787 Central Avenue, Dover, New Hamp-
shire, and 95 Charles Street, Rochester, New
Hampshire. It is engaged in providing mental
health services for Strafford County, New Hamp-
shire.
In the course of providing mental health serv-
ices, the Respondent receives gross annual revenue
in excess of $250,000 and annually receives goods
valued in excess of $3,000 directly from points lo-
cated outside the State of New Hampshire and
goods valued in excess of $20,000, indirectly from
points located outside the State of New Hampshire.
We find, on the basis of the foregoing, that the
Respondent 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
Service Employees International Union Local
285, AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act.
IIll. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
THE STRAFFORD GUIDANCE CENTER, INC. 399
All full-time and regular part-time employ-
ees, including secretary-typist, secretary-recep-
tionists, secretary, intake secretary and fee as-
sessors, maintenance employees, psychiatric
social worker, after care counselors, intake
crisis workers, associate psychologists, volun-
teer coordinators, day treatment therapists,
youth outreach workers, counselors and secre-
tary/computer operators employed by the Re-
spondent at the following locations: 576 Cen-
tral Avenue, Dover, New Hampshire; 787
Central Avenue, Dover, New Hampshire; and
95 Charles Street, Rochester, New Hampshire,
but excluding lead secretary, executive direc-
tor, assistant executive director, clinical direc-
tor, office manager, business manager, director
of intake and emergency services, coordinator
youth outreach, coordinator of clinical serv-
ices, psychiatrist, consultant psychiatrist, clini-
cal psychologist, guards and supervisors as de-
fined in the Act.
2. The certification
On December 31, 1979, a majority of the em-
ployees of the Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region , designated the
Union as their representative for the purposes of
collective bargaining with the Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on April 10, 1980, 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 the
Respondent's Refusal
Commencing on or about October 23, 1980, and
at all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about October 28, 1980, and con-
tinuing at all times thereafter to date, the Respond-
ent has refused, and continues to refuse, to recog-
nize and bargain with the Union as the exclusive
representative for collective bargaining of all em-
ployees in said unit.
Accordingly, we find that the Respondent has,
since October 28, 1980, and at all times thereafter,
refused to bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit, and that, by such refusal, the Re-
spondent 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 .FFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in sec-
tion II, above, occurring in connection with its
operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, 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 the 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 em-
ployees in the appropriate unit and, if an under-
standing 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-
fication as beginning on the date the Respondent
commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate unit. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany d/b/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817; 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. The Strafford Guidance Center, Inc., is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Service Employees International Union Local
285, 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 employees,
including secretary-typists, secretary-receptionists,
secretary, intake secretary and fee assessors, main-
tenance employees, psychiatric social worker, after
care counselors, intake crisis workers, associate
psychologists, volunteer coordinators, day treat-
ment therapists, youth outreach workers, counsel-
ors and secretary/computer operators employed by
the Respondent at the following locations: 576
Central Avenue, Dover, New Hampshire; 787 Cen-
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tral Avenue, Dover, New Hampshire; and 95
Charles Street, Rochester, New Hampshire, but ex-
cluding lead secretary, executive director, assistant
executive director, clinical director, office man-
ager, business manager, director of intake and
emergency services, coordinator youth outreach,
coordinator of clinical services, psychiatrist, con-
sultant psychiatrist, clinical psychologist, 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 April 10, 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 purposes of col-
lective bargaining within the meaning of Section
9(a) of the Act.
5. By refusing on or about October 28, 1980, and
at all times thereafter, to bargain collectively with
the above-named labor organization as the exclu-
sive bargaining representative of all the employees
of the Respondent in the appropriate unit, the Re-
spondent has engaged 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, the Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and 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
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,
The Strafford Guidance Center, Inc., Dover and
Rochester, New Hampshire, 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 Service Employees
International Union Local 285, AFL-CIO, CLC,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All full-time and regualr part-time employ-
ees, including secretary-typists, secretary-re-
ceptionists, secretary, intake secretary and fee
assessors, maintenance employees, psychiatric
social worker, after care counselors, intake
crisis workers, associate psychologists, volun-
teer coordinators, day treatment therapists,
youth outreach workers, counselors and secre-
tary/computer operators employed by the Re-
spondent at the following locations: 576 Cen-
tral Avenue, Dover, New Hampshire; 787
Central Avenue, Dover, New Hampshire; and
95 Charles Street, Rochester, New Hampshire,
but excluding lead secretary, executive direc-
tor, assistant executive director, clinical direc-
tor, office manager, business manager, director
of intake and emergency services, coordinator
youth outreach, coordinator of clinical serv-
ices, psychiatrist, consultant psychiatrist, clini-
cal psychologist, guards and supervisors as de-
fined 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 facilities at 576 Central Avenue,
Dover, New Hampshire, 787 Central Avenue,
Dover, New Hampshire, and 95 Charles Street,
Rochester, New Hampshire, copies of the attached
notice marked "Appendix." 6 Copies of said notice,
on forms provided by the Regional Director for
Region 1, after being duly signed by the Respond-
ent's representative, shall be posted by the Re-
spondent 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. Rea-
sonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
I 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 Naliolal Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of Ihe United States Court of Appeals Enforcing al
Order of the Natillonal labor Relations Board."
THE STRAFFORD GUIDANCE CENTER, INC. 401
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 Service Employees International Union
Local 285, AFL-CIO, CLC, 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 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 em-
ployees, including secretary-typists, secre-
tary-receptionist, secretary, intake secretary
and fee assessors, maintenace employees,
psychiatric social worker, after care counsel-
ors, intake crisis workers, associate psychol-
ogists, volunteer coordinators, day treatment
therapists, youth outreach workers, counsel-
ors and secretary/computer operators em-
ployed by the Respondent at the following
locations: 576 Central Avenue, Dover, New
Hampshire; 787 Central Avenue, Dover,
New Hampshire; and 95 Charles Street,
Rochester, New Hampshire, but excluding
lead secretary, executive director, assistant
executive director, clinical director, office
manager, business manager, director of
intake and emergency services, coordinator
youth outreach, coordinator of clinical serv-
ices, psychiatrist, consultant psychiatrist,
clinical psychologist, guards and supervisors
as defined in the Act.
THE STRAFFORD GUIDANCE CENTER,
INC.
I