MHN Government Services, LLC

National Labor Relations Board - Board Decisions

May 7, 2020

369 N.L.R.B. 74 (N.L.R.B. 2020)

369 NLRB No. 74
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
MHN Government Services, LLC and International
Association of Machinists and Aerospace Work-
ers, AFL–CIO. Case 27–CA–253931
May 7, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
This is a refusal-to-bargain case in which the Respond-
ent, MHN Government Services, LLC, is contesting the
Union’s certification as bargaining representative in the
underlying representation proceeding. Pursuant to a
charge and an amended charge filed on December 30,
2019, and January 10, 2020,1 respectively, by Interna-
tional Association of Machinists and Aerospace Workers,
AFL–CIO (the Union), the General Counsel issued the
complaint on January 13, 2020, alleging that the Respond-
ent has violated Section 8(a)(5) and (1) of the Act by re-
fusing the Union’s request to recognize and bargain with
it following the Union’s certification in Case 27–RC–
237341. (Official notice is taken of the record in the rep-
resentation proceeding as defined in the Board’s Rules and
Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an answer
admitting in part and denying in part the allegations in the
complaint and asserting affirmative defenses.
On February 3, 2020, the General Counsel filed a Mo-
tion for Summary Judgment. On February 20, 2020, 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 an opposition to the
General Counsel’s Motion for Summary Judgment and a
cross-motion for summary judgment. The Union filed a
reply to the Respondent’s opposition and then filed a Join-
der in the General Counsel’s Motion for Summary Judg-
ment and reply to the Respondent’s opposition. The Re-
spondent then filed a supplemental statement in
1 The complaint inadvertently states that the first amended charge was
filed on January 10, 2019.
Although the Respondent in its answer denies knowledge or infor-
mation sufficient to form a belief regarding the dates that the charge and
amended charge were filed or served upon the Respondent, the Respond-
ent admits that it received the charge and amended charge. Copies of the
charge, the amended charge, and their respective affidavits of service are
included in the documents supporting the General Counsel’s motion,
showing the dates as alleged, and the Respondent has not challenged the
authenticity of these documents.
opposition to the General Counsel’s Motion for Summary
Judgment.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain but con-
tests the validity of the Union’s certification of representa-
tive based on its objections to the election in the underly-
ing representation proceeding.2
All representation issues raised by the Respondent were
or could have been litigated in the prior representation pro-
ceeding. The Respondent does not offer to adduce at a
hearing any newly discovered and previously unavailable
evidence, nor does it allege any special circumstances that
would require the Board to reexamine the decision made
in the representation proceeding. We therefore find that
the Respondent has not raised any representation issue that
is properly litigable in this unfair labor practice proceed-
ing. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S.
146, 162 (1941).
Accordingly, we grant the Motion for Summary Judg-
ment.3
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Dela-
ware limited liability company with a principal office and
place of business in San Rafael, California, and offices and
places of business throughout the United States, including
at the Fort Carson Army installation and the U.S. Air
Force Academy in Colorado Springs, Colorado, where it
has been engaged in providing counseling services in con-
nection with the Military and Family Life Counseling Pro-
gram pursuant to a contract with the United States Gov-
ernment.
During the 12-month period preceding issuance of the
complaint, a representative time period, the Respondent,
in conducting its operations described above, has derived
gross revenues in excess of $1 million, and has purchased
and received at its San Rafael, California office goods and
services valued in excess of $5000 directly from points
outside the State of California.
2 The Respondent asserts as an affirmative defense that the complaint
fails to state a claim upon which relief can be granted. The Respondent
has not offered any explanation or evidence to support this bare assertion.
Thus, we find that this affirmative defense is insufficient to warrant de-
nial of the General Counsel’s motion for summary judgment in this pro-
ceeding. See, e.g., Station GVR Acquisition, LLC d/b/a Green Valley
Ranch Resort Spa Casino, 366 NLRB No. 58, slip op. at 1 fn. 1 (2018),
and cases cited therein.
3 Accordingly, we deny the Respondent’s cross-motion for summary
judgment and its request that the complaint be dismissed and that the
underlying representation proceeding be reopened.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the representation election held on April 5,
2019, the Union was certified on August 1, 2019,4 as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:5
All full-time and regular part-time Military Family Life
Counselor (MFLC) employees known as Special Pro-
fessional Associates employed by the Employer to per-
form work on-base and in and around Colorado Springs,
Colorado, for the MFLC III Program at the Fort Carson
Army installation and the US Air Force Academy; ex-
cluding all other employees, managers, office clericals,
guards, and supervisors as defined by the Act.
The Union continues to be the exclusive collective-bar-
gaining representative of the unit employees under Sec-
tion 9(a) of the Act.
B. Refusal to Bargain
At all material times, the following individuals have
held the positions set forth opposite their respective names
and have been agents of the Respondent within the mean-
ing of Section 2(13) of the Act:
Elena Honeycutt - Human Resources Manager
Kenneth Rodriguez - Senior Director of Human
Resources
Mark Corcoran - Vice President—Labor Relations
The Union, by letter transmitted by email on August 6
and again on December 10, 2019, requested that the Re-
spondent recognize and bargain collectively with it as the
exclusive collective-bargaining representative of the unit.
Since about December 27, 2019, the Respondent, by its
Vice President – Labor Relations Mark Corcoran, in
4 By unpublished Order dated November 12, 2019, the Board denied
the Respondent’s request for review of the Regional Director’s Decision
on Determinative Challenged Ballot and Objections.
5 The Respondent’s answer denies that the description of the appro-
priate unit in complaint par. 5(a) is correct, based on its assertion that it
does not employ any Special Professional Associates at the Fort Carson
Army installation. The Board has established, however, that the appro-
priateness of a bargaining unit is based upon the conditions of employ-
ment that exist at the time of the hearing. Consequently, any changes in
the composition of a unit that occur after the underlying representation
hearing do not constitute newly discovered or previously unavailable ev-
idence. See, e.g., Puna Geothermal Venture, 362 NLRB 1087, 1087–
1088 fn. 4 (2015). Accordingly, the Respondent’s denial does not
writing, has failed and refused to recognize and bargain
with the Union.
We find that the Respondent’s conduct constitutes an
unlawful failure and refusal to recognize and bargain with
the Union in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By failing and refusing since December 27, 2019, to
recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
appropriate unit, the Respondent has engaged in unfair la-
bor 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 un-
derstanding 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 initial period of the certifi-
cation as beginning on the date the Respondent begins to
bargain in good faith with the Union. Mar-Jac Poultry
Co., 136 NLRB 785 (1962); accord Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57
(10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied
379 U.S. 817 (1964).6
ORDER
The National Labor Relations Board orders that the Re-
spondent, MHN Government Services, LLC, Colorado
Springs, Colorado, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive collective-bargain-
ing representative of the employees in the bargaining unit.
preclude summary judgment or raise any material issues of fact warrant-
ing a hearing.
6 The Union requests additional enhanced remedies. Contrary to the
Union’s assertion, there has been no showing that the Board’s traditional
remedies are insufficient to redress the violations found. Accordingly,
we deny the Union’s request for additional remedies. NP Sunset LLC
d/b/a Sunset Station Hotel Casino, 367 NLRB No. 62, slip op. at 3
(2019).
In view of our denial of the Union’s request for additional remedies,
we find it unnecessary to pass on the Respondent’s assertion that the
General Counsel’s motion should be denied because the Union’s request
for extraordinary remedies requires a hearing before an administrative
law judge.
MHN GOVERNMENT SERVICES, LLC 3
(b) In any like or related manner interfering with, re-
straining, 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 with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All full-time and regular part-time Military Family Life
Counselor (MFLC) employees known as Special Pro-
fessional Associates employed by the Employer to per-
form work on-base and in and around Colorado Springs,
Colorado, for the MFLC III Program at the Fort Carson
Army installation and the US Air Force Academy; ex-
cluding all other employees, managers, office clericals,
guards, and supervisors as defined by the Act.
(b) Post at its facilities in Colorado Springs, Colorado
(specifically including its facilities at the Fort Carson
Army installation and the U.S. Air Force Academy), cop-
ies of the attached notice marked “Appendix.”7 Copies of
the notice, on forms provided by the Regional Director for
Region 27, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facilities 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 em-
ployees employed by the Respondent at any time since
December 27, 2019.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 27 a sworn certification
of a responsible official on a form provided by the Region
7 If the facilities involved in these proceedings are open and staffed
by a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facilities involved in
these proceedings are closed due to the Coronavirus pandemic, the no-
tices must be posted within 14 days after the facilities reopen and a sub-
stantial complement of employees have returned to work, and the notices
may not be posted until a substantial complement of employees have re-
turned to work. Any delay in the physical posting of the paper notices
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. May 7, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with International Association of Machinists and Aero-
space Workers, AFL–CIO, as the exclusive collective-bar-
gaining representative of our employees in the bargaining
unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
also applies to the electronic distribution of the notice if the Respondent
customarily communicates with its employees by electronic means. 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 Rela-
tions Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL, on request, bargain with the Union and put in
writing and sign any agreement reached on terms and con-
ditions of employment for our employees in the following
appropriate bargaining unit:
All full-time and regular part-time Military Family Life
Counselor (MFLC) employees known as Special Pro-
fessional Associates employed by the Employer to per-
form work on-base and in and around Colorado Springs,
Colorado, for the MFLC III Program at the Fort Carson
Army installation and the US Air Force Academy; ex-
cluding all other employees, managers, office clericals,
guards, and supervisors as defined by the Act.
MHN GOVERNMENT SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/27-CA-253931 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.