Servicios Correccionales de Puerto Rico

National Labor Relations Board - Board Decisions

Feb 18, 2000

330 N.L.R.B. 663 (N.L.R.B. 2000)

SERVICIOS CORRECCIONALES DE PUERTO RICO 663
Corrections Corporation of America, d/b/a Servicios
Correccionales de Puerto Rico and Union Gen-
eral de Trabajadores de Puerto Rico. Case 24–
CA–8381

February 18, 2000

DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
Pursuant to a charge filed on July 12, 1999, and an
amended charge filed on September 16, 1999,1 the Gen-
eral Counsel of the National Labor Relations Board is-
sued a complaint on September 30, 1999, alleging that
the Respondent has violated Section 8(a)(5) and (1) of
the National Labor Relations Act by refusing the Union’s
request to bargain following the Union’s certification in
Case 24–RC–7936. (Official notice is taken of the “re-
cord” in the representation proceeding as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The
Respondent filed an answer admitting in part and deny-
ing in part the allegations in the complaint and asserting
affirmative defenses.
On November 26, 1999, the General Counsel filed a
Motion for Summary Judgment. On November 26,
1999, the Board issued an order transferring the proceed-
ing to the Board and a Notice to Show Cause why the
motion should not be granted. The Respondent filed a
response.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Ruling on Motion for Summary Judgment
In its answer the Respondent admits its refusal to bar-
gain, but attacks the validity of the certification on the
basis of the Board’s unit determination in the representa-
tion proceeding. Specifically, the Respondent renews its
contentions, raised and rejected in the representation
case, that the social penal workers included in the certi-
fied unit are statutory supervisors and/or guards, and
therefore the unit is inappropriate for bargaining.2

1 The Respondent’s answer to the complaint denies that the original
charge was served on the Respondent on July 12, 1999, and denies
knowledge of service on the Respondent of the amended charge on
September 16, 1999. The General Counsel, however, has attached to
the motion copies of the charge and amended charge, and affidavits of
service and copies of postal return receipts for each of them. The Re-
spondent has not challenged the authenticity of those documents in
response to the Notice to Show Cause.
2 In its answer to the complaint, the Respondent states as an affirma-
tive defense that it does not employ persons with the classification of
“social penal workers.” In arguing in the representation case that em-
ployees in the petitioned-for classification of social penal workers were
statutory supervisors, the Respondent asserted that the correct designa-
tion for these employees is “social penal supervisors.” The Regional
Director in the representation case expressly rejected the Respondent’s
contention that it has no social penal “workers,” but rather only social
penal “supervisors,” and this finding was affirmed by the Board. Thus,
this affirmative defense raises no issue that is properly litigable in the
instant proceeding, and instead merely constitutes a reiteration of the
Respondent’s contention that these employees are statutory supervisors.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to ad-
duce at a hearing any newly discovered and previously
unavailable evidence, nor does it allege any special cir-
cumstances 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 un-
fair labor practice proceeding. See Pittsburgh Plate
Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a Delaware cor-
poration authorized to do business in the Commonwealth
of Puerto Rico, with an office and place of business in
Guayama, Puerto Rico, has been engaged in the opera-
tion and management of several correctional facilities in
the Commonwealth of Puerto Rico. During the 12-
month period immediately preceding issuance of the
complaint, the Respondent, in conducting its business
operations described above, derived gross revenues in
excess of $50,000 and purchased and received at its
Guayama, Puerto Rico facility goods valued in excess of
$50,000 directly from points outside the Commonwealth
of Puerto Rico. We find that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 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.3

3 The Respondent’s answer to the complaint denies that it is a Dela-
ware corporation. The Respondent, however, did not contest the Re-
gional Director’s finding in the underlying representation case that the
Respondent is a Delaware corporation. Accordingly, we find that this
denial does not raise an issue that is properly litigable in this proceed-
ing. The Respondent’s answer also neither admits nor denies the com-
plaint allegations that the Respondent is an employer engaged in com-
merce within the meaning of Sec. 2(2), (6), and (7) of the Act, and that
the Union is a labor organization, on the grounds that each of these
allegations “is a conclusion of law that pertains to the administrative
law judge.” The Respondent, however, stipulated to the Union’s labor
organization status in the representation case, and has alleged no facts
that would put that status in question. With respect to the Respondent’s
status as an employer under the Act, the Board found in the representa-
tion case that the Respondent had not properly and timely raised the
issue of the Board’s discretionary jurisdiction because the Respondent
had not raised that issue in the representation case hearing or in its post-
hearing brief. Further, in the representation proceeding the Board
rejected the Respondent’s contention that the Board lacked statutory
jurisdiction over it. In addition, the Respondent’s answer admits the
commerce facts alleged in the complaint as the factual bases of the
allegation that the Respondent is an employer within the meaning of the
Act. Accordingly, we find that the Respondent’s answer as to these
matters does not raise an issue warranting a hearing, and that the Board
has jurisdiction over the Respondent.
330 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held April 17, 1998, the Union
was certified on April 28, 1999, as the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:

INCLUDED: All nonprofessional employees em-
ployed by the Employer at its correctional facilities in
Guayama, Puerto Rico, including licensed practical
nurses, office clerical employees, administrative clerks,
secretaries, commissary clerks, food service workers,
mail room clerk, inmate criminal records clerks, medi-
cal records clerks, library aide, dental hygienist,
hygienist, receptionist, pharmacist assistants, computer
lab technician, social penal workers, and maintenance
workers.

EXCLUDED: All professional employees, secretaries
to the warden and assistant warden, administrative
clerk to chief of security, administrative clerk in the
personnel office, guards, and supervisors as defined by
the Act.

The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
By memorandum dated July 6, 1999, the Respondent
changed the work schedule of its socio penal workers,4
also referred to by the Respondent as “socio penal super-
visors,” effective on July 25, 1999. This subject relates
to wages, hours, and other terms and conditions of em-
ployment of the unit employees and is a mandatory sub-
ject for the purposes of collective bargaining. The Re-
spondent changed the socio penal workers’ work sched-
ules without prior notice to the Union and without
affording the Union an opportunity to bargain with the
Respondent concerning this conduct and its effects. On
about July 16, 1999, the Union requested the Respondent
to bargain collectively about the change in work schedule
of the socio penal workers described above, and, since
about July 16, 1999, the Respondent has refused to do
so.5 Further, since on about July 16, 1999, the Respon-
dent has failed and refused to recognize the Union as the
exclusive collective-bargaining representative of those
unit employees classified as social penal workers. We
find that these refusals constitute unlawful refusals to
bargain in violation of Section 8(a)(5) and (1) of the Act.

4 The complaint uses the term “socio penal workers” to describe the
social penal workers included in the certified unit. This difference in
designation does not affect our consideration of the issues presented by
the complaint, and we shall use those terms interchangeably in this
decision.
5 In its answer, the Respondent denies the complaint’s factual allega-
tions that on July 6, 1999, the Respondent changed the work hours of
its social penal workers, that this change was made without notice to
and bargaining with the Union, and that the Union requested bargaining
concerning the change in hours. These denials do not warrant a hearing
as uncontroverted record evidence in the form of documents attached to
the General Counsel’s motion establishes the General Counsel’s allega-
tions regarding these matters. Thus, the record contains the Respon-
dent’s July 6, 1999 memorandum to social penal employees announc-
ing the change in their work schedules, and the Respondent’s July 16,
1999 letter to the Union, which states the Respondent’s position that
those employees are “not covered in any of the appropriate units certi-
fied by the National Labor Relations Board,” and that therefore “the
changes in the terms and conditions of said employees are an adminis-
trative prerogative.” Implicit in this letter is the admission that the
Union previously had requested bargaining regarding the change in
work schedules.
CONCLUSION OF LAW
By refusing on and after July 16, 1999, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of employees in the appropriate unit, the Re-
spondent has engaged in unfair labor 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
understanding is reached, to embody the understanding
in a signed agreement. We also shall order the Respon-
dent to rescind the July 1999 change in the schedules of
the social penal workers, and restore the status quo ante
regarding their schedules. In addition, we shall order the
Respondent to make employees whole for any losses
they may have suffered as a result of the Respondent’s
unlawful unilateral change in the work schedule.6 Back-
pay shall be computed in accordance with Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), with interest as prescribed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
To ensure that the employees are accorded the services
of their selected bargaining agent for the period provided
by the law, we shall construe the initial period of the cer-
tification as beginning 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
226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); Burnett Construction Co.,
149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th
Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, Corrections Corporation of America, d/b/a
Servicios Correccionales de Puerto Rico, Guayama,
Puerto Rico, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain with Union General de Traba-
jadores de Puerto Rico as the exclusive bargaining repre-
sentative of the employees in the bargaining unit.

6 See Grand Rapids Press, 325 NLRB 915, 916 (1998).

SERVICIOS CORRECCIONALES DE PUERTO RICO 665
(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
representative of the employees in the following appro-
priate unit on terms and conditions of employment, in-
cluding the work schedules of social penal workers, and
if an understanding is reached, embody the understand-
ing in a signed agreement:

INCLUDED: All nonprofessional employees
employed by the Employer at its correctional facili-
ties in Guayama, Puerto Rico, including licensed
practical nurses, office clerical employees, adminis-
trative clerks, secretaries, commissary clerks, food
service workers, mail room clerk, inmate criminal
records clerks, medical records clerks, library aide,
dental hygienist, hygienist, receptionist, pharmacist
assistants, computer lab technician, social penal
workers, and maintenance workers.
EXCLUDED: All professional employees, sec-
retaries to the warden and assistant warden, adminis-
trative clerk to chief of security, administrative clerk
in the personnel office, guards, and supervisors as
defined by the Act.

(b) On request, rescind the change in the work sched-
ules of the social penal workers announced on July 6,
1999, as being effective on July 25, 1999, and restore the
schedules as they existed prior to this unlawful change.
(c) Make whole the social penal workers and any other
unit employees for any losses they suffered as a result of
the Respondent’s unlawful unilateral change in their
work schedules described above, as set forth in the rem-
edy section of this decision.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Guayama, Puerto Rico, copies of the at-
tached notice marked “Appendix.”7 Copies of the notice,
on forms provided by the Regional Director for Region
24 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 al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since July 16,
1999.

7 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.

MEMBER BRAME, dissenting.
In the underlying representation proceeding, I dis-
sented from my colleagues’ denial of the Employer’s
request for review of the Regional Director’s Decision
and Direction of Election. Contrary to my colleagues, I
found that the Employer’s request for review raised sub-
stantial issues with respect to the alleged supervisory and
guard status of the social penal supervisors, also referred
to as social penal workers. Thus, in the representation
case, I would have permitted the social penal supervisors
to vote subject to challenge and resolved their status pos-
telection. Accordingly, I dissent here from my col-
leagues’ granting the General Counsel’s Motion for
Summary Judgment and their finding that the Respon-
dent violated Section 8(a)(5) and (1) of the Act in this
certification-testing proceeding.

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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT refuse to bargain with Union General de
Trabajadores de Puerto Rico as the exclusive representa-
tive of the 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
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union as the ex-
clusive representative of the employees in the following
appropriate unit on terms and conditions of employment,
including the work schedules of social penal workers,
and put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
INCLUDED: All nonprofessional employees
employed by the Employer at its correctional facili-
ties in Guayama, Puerto Rico, including licensed
practical nurses, office clerical employees, adminis-
trative clerks, secretaries, commissary clerks, food
service workers, mail room clerk, inmate criminal
records clerks, medical records clerks, library aide,
dental hygienist, hygienist, receptionist, pharmacist
assistants, computer lab technician, social penal
workers, and maintenance workers.
EXCLUDED: All professional employees, sec-
retaries to the warden and assistant warden, adminis-
trative clerk to chief of security, administrative clerk
in the personnel office, guards, and supervisors as
defined by the Act.

WE WILL, on request, rescind the change in the work
schedules of the social penal workers announced on July
6, 1999, as being effective on July 25, 1999, and WE WILL
restore the schedules as they existed prior to this unlaw-
ful change.
WE WILL make whole the social penal workers and any
other unit employees for any losses they suffered as a
result of our unlawful unilateral change in their work
schedules described above, with interest.

CORRECTIONS CORPORATION OF AMERICA, D/B/A
SERVICIOS CORRECCIONALES DE PUERTO RICO