Duquesne University of the Holy Ghost

DUQUESNE UNIVERSITY Duquesne University of the Holy Ghost and General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America and Employees Committee of Duquesne University, Party in Interest. Case 6-CA-5506 August 14, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 7, 1972, Trial Examiner Abraham H. Mailer issued the attached Decision in this proceed- ing. Thereafter, Respondent and the Employees Committee filed exceptions and supporting briefs, the General Counsel filed an answering brief, and Respondent filed a reply memorandum.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions2 only to the extent consistent herewith. The complaint alleges,3 and the Trial Examiner finds, that Respondent assisted, supported, dominat- ed, and interfered with the administration of the Employees Committee (herein referred to as the Committee), in violation of Section 8(a)(2) and (1) of the Act. Remedially, the Trial Examiner recom- mends, inter alga, that Respondent disestablish the Committee, withdraw and withhold recognition, and cease contributing financial or other support to the Committee. For the reasons expressed herein, we agree that Respondent unlawfully assisted and supported the Committee. However, we do not agree that Respon- dent dominated the Committee, or that disestablish- ment is an appropriate remedy in this case. Support and Assistance In finding that Respondent unlawfully supported the Committee, the Trial Examiner concludes that the Committee is completely dependent upon the University's assistance and that the degree of financial support furnished here has been found by i Respondent's motion to file a reply memorandum is hereby granted 2 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's conclusion that Respondent did not violate Sec 8 (a)(1) of the Act by granting an increased pay raise to all nonexempt employees on July 1, 1971. 3 The Trial Examiner permitted the General Counsel to amend the complaint at the hearing to include an allegation that since on or about November 14, 1970, Respondent also violated Sec 8(a)(2) and (1) of the Act by negotiating terms and conditions of employment with the Committee at 198 NLRB No. 117 891 the Board to be another method of control. The Trial Examiner relies on the facts that the Committee collects no dues and has no treasury, the committee meets on University premises, Committee members are not docked for time spent at meetings, ballots for Committee elections were printed at the University's expense and distributed through the University's mail, elections were conducted on the University's time, and the Committee's weekly newsletter is printed at the University's expense and distributed through the University's mail. If the record were devoid of any evidence of assistance but that relied on by the Trial Examiner as set out above, we would be reluctant to find that evidence sufficient to warrant an unlawful assistance finding due to the special circumstances of this case; i.e., where an employer, here a university, so freely makes available its facilities, time, and services to any desirous organization, including, to some extent, other labor organizations. As the Board and courts repeatedly have held, the types of benefits conferred by Respondent on the Committee do not constitute per se violations of Section 8(a)(2).4 Indeed, where a union lawfully has been established as the employ- ees' bargaining representative, and has been accord- ed lawful recognition by an employer who, following recognition, deals with that representative at arm's length, we have sometimes characterized benefits of the type found herein merely as friendly cooperation growing out of an amicable labor-management relationship. For the following reasons we find that situation does not exist in this case. We note that the relationship between Respondent and the Committee has not been totally free of other unwarranted interference by Respondent. While in certain respects the Committee did, in fact, bargain about many proposals with the Staff Relations Committee (SRC), or with Respondent's personnel director, King, in an arm's length manner, there are other instances of less than arm's length dealing, demonstrating a continuing kind of assistance which, when combined with the tangible assistance referred to above, sufficiently establishes a violation of Section 8(a)(2). Examples of this conduct are to be found in (1) King's giving his "advice and counsel" to the Committee, (2) the SRC functioning in part as an "advisory body" to the Committee, (3) evidence tending to show that Respondent's vice president, a time when the Committee did not represent an uncoerced majority of employees, and following the filing of a representation petition by a rival union In view of our disposition of this case, we find it unnecessary to ,reach the issue of whether or not Respondent's conduct falls within the proscription of the Board's decision in Midwest Piping and Supply Co, Inc, 163 NLRB 1060 4 Sunnen Products, Inc, 189 NLRB No 132, Ladish Co, 180 NLRB 582, 1Hesston Corp, 175 NLRB 96, Coypus Engineering Corp v N L. R B, 240 F.2d 564 (C.A 1 ).Chicago Rawhide Mfg Co v. N L R B, 221 F 2d 165 (C.A 7) 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Erifft, attempted to act as an "advisor" to the Committee after dissolution of the SRC, and (4) King's assistance to the Committee in helping it select a particular attorney to represent it in the related representation proceedings. As indicated, we find the combination of these unusual indicia of intent, together with the liberal availability of University facilities without cost, enough to establish that kind of interference with true freedom of choice and that kind of improper assistance which are condemned in Section 8(a)(1) and (2) of the Act. When viewed against the background circum- stances surrounding the Committee's establishment and the absence of any convincing evidence that the Committee did, in fact, represent an uncoerced majority of nonexempt employees,5 we must con- clude that the relationship which exists between Respondent and the Committee transgresses the boundaries permissible under the Act. In the face of such a relationship, we find that Respondent further violated Section 8(a)(2) and (1) of the Act by providing those items of financial and other assist- ance and support relied on by the Trial Examiner. Domination The Trial Examiner's finding that Respondent dominated the Committee rests on two major conclusions. First, he states that no actual domination need be found, but rather the ability to dominate is sufficient to support such a finding where the structure of the organization accords Respondent the implicit power to control the composition of the Committee by exercising its managerial power to transfer, promote, or discharge the employee representative.6 According to the Trial Examiner, because members of the Committee are elected by areas of the University, the University clearly has the power to alter the Committee's membership by transferring, promoting, or discharging those representatives. While the Board has held that the implicit power of an employer to transfer, promote, or discharge employee representatives, even where the employer has not attempted to do so, constitutes evidence of s While we are precluded by Sec 10(b) of the Act from basing any unfair labor practice finding upon conduct occurring prior to November 13, 1970, we are not precluded from considering circumstances prior to that date which shed light on the true character of matters since that date . Machinists Local 1424 (Bryan Manufacturing Company), 362 U S 411 In this regard, we cannot ignore the manner in which the employees were led to believe from the outset that the Committee had the administration's "approval" and "legal sanction " Likewise, we cannot ignore the fact that at no time did Respondent demand, nor did the Committee attempt to obtain, any designations authorizing the Committee to represent nonexempt employees, nor did the employees manifest by any objective means their desire to be represented by the Committee at any time prior to the filing of the representation petitions by the Teamsters 6 Citing Tuscarora Plastics Co, 167 NLRB 1059, and Hydraulic domination, such a finding has been limited to situations where the organization has been formulat- ed and structured by the employer. In those cases,7 particularly those relied on by the Trial Examiner, it was the employer who determined the method of selecting the representatives. In Tuscarora, supra, the employer instructed the employees to pick two representatives from each shift. In Hydraulic Accesso- ries, supra, the employer's superintendent notified the employees that they were to nominate candidates from their work units and, indeed, encouraged two employees to seek election. However, where, as here, the structure of the Committee and the method of selecting representa- tives rests solely with the employees,8 and there is nothing in the record to indicate any means by which the selection is subject to employer approval or control, we find no basis for concluding that Respondent violated the Act merely because it retains the power, which every employer has, to transfer employees from one area of its operations to another.9 Every employer in an industrial plant, for example, theoretically has the power to affect employee representatives by transferring union stewards, who are normally selected on a departmen- tal basis, to other departments. But any attempt by an employer to use such right to transfer for the deliberate purpose of altering the structure of employee representation, or diluting its effectiveness by an improper exercise of this power, would, of course, violate the Act. There is no factual basis for assuming in this case that Respondent would take such unlawful action, and we will make no such presumption. Next, the Trial Examiner finds domination by virtue of Respondent's setting up procedures which, in his view, impeded and frustrated the Committee in its attempt to secure benefits for its members, thereby impairing the Committee's effectiveness. Specifically, the Trial Examiner relies on the creation of the SRC by which the University could control and modify the Committee's demands, and by King's control over Committee proposals after dissolution of the SRC. Contrary to the Trial Examiner, we find no Accessories Company, 165 NLRB 864 7 See, eg., Clapper's Manufacturing Co, 186 NLRB 324 (the employer suggested the form and structure of the committee), Fire Alert Co, 182 NLRB 910 (the employer instructed the employees to elect three representatives and then assigned each employee to a particular representa- tive to present grievances), and Modern Plastics Corp, 155 NLRB 1126 (the election and voting procedures were part of the collective-bargaining contract and subject to change only with the agreement of the employer). 8 In this regard, we note that while Personnel Director King suggested the election of one representative from each of six job classifications, the Committee, in fact, selected eight representatives based on geographic location rather than type of work 9 Ladish Company, Texas Division, supra, Chicago Rawhide Manufactur- ing Co v. N L R B , supra, and Coppus Engineering Corp v N LR B, supra DUQUESNE UNIVERSITY 893 evidence that the SRC was created for the purpose of impeding or frustrating the Committee. In any event, the creation of the SRC occurred prior to the 10(b) period. Likewise, we find nothing occurring within the 10(b) period which would warrant a conclusion that the SRC, in fact, impeded or frustrated the Committee in its efforts to represent the nonexempt employees. To the contrary, the record is replete with the accomplishments of the Committee in securing approval of proposals. During the SRC's existence the Committee functioned successfully both within and outside the structure of the SRC, presenting proposals to any university committee or administra- tion official the Committee deemed appropriate. And, significantly, no recommendation or proposal was forwarded to the administrative council unless it was acceptable to the Committee. Moreover, it was the Committee's opposition to the SRC that led to its eventual dissolution. Nor was King any greater impediment to the committee than was the SRC. In most instances where the Committee presented proposals to King, they were discussed and acted upon in the same manner as were proposals from two affiliated labor organizations representing University employees. When agreement was reached, the proposals were forwarded through Vice President Erfft to the administrative council for final approval. Neither King nor the SRC sought to control the proposals made by the Committee, nor did they attempt to direct the internal operation of the Committee in any way. And while King and Erfft may have, from time to time, advised the Committee of an appropriate method of proceeding, at best we regard such advice and counsel as nothing more than unlawful assist- ance, supra. Therefore, on the record herein, we find no basis for concluding that Respondent dominated the Committee, either through its inherent power to transfer representatives or through the establishment of procedures to impede and frustrate the Committee in its operation.io Remedy Having found that Respondent did not dominate the Committee, we shall not require Respondent to disestablish the Committee. However, in view of our finding that Respondent violated Section 8(a)(2) and (1) of the Act by unlawfully assisting and supporting the Committee, we shall order Respondent to io The Trial Examiner regarded as further evidence of domination the fact that King suggested that the Committee retain a particular attorney to represent it in a related representation case , and the Committee followed his suggestion In view of our refusal to find any other evidence of domination, we regard such a suggestion as merely another instance of unlawful assistance, supra withdraw and withhold recognition from the Com- mittee until such time as the Committee is certified by the Board as the bargaining representative of nonexempt employees in an appropriate unit or units.ii In addition, we shall order Respondent to withhold all unlawful financial and other support or assistance from the Committee and shall also require Respondent or any of its representatives to refrain from acting in any advisory capacity to the Commit- tee. By our remedy herein, we intend to preclude Respondent from assisting and supporting the Committee in any manner until such time as the nonexempt employees are given an opportunity in a Board-conducted election freely to select a bargain- ing representative. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Duquesne University of the Holy Ghost, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing the Employees Committee as the representative of its nonexempt employees unless and until such time as the Employees Committee has been duly certified by the Board as the exclusive collective-bargaining representative of nonexempt employees in an appropriate unit or units. (b) Unlawfully contributing any financial or other support or assistance, or acting in any advisory capacity, to the Employees Committee. (c) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other unilateral aid or protection, or to refrain from any and all such activity. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Withdraw and withhold recognition from the Employees Committee as the representative of its nonexempt employees for the purpose of dealing with it in respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- ii Mears Coal Company, 175 NLRB 837, Northern Metal Products Co, 171 NLRB 98, Wean Manufacturing Company, 147 NLRB 112. cf Mon River Towing, Inc, 173 NLRB 1452 We also note the Employees Committee's willingness, as expressed in its brief, to forego dealing with Respondent pending an election 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of employment, unless and until the Employees Committee has been duly certified by the Board as the exclusive collective-bargaining representative of nonexempt employees in an appropriate unit or units. (b) Post at its Pittsburgh, Pennsylvania, campus copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 12 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 pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " APPENDIX WE WILL withdraw and wittihoTd all recogni- tion from the Employees Committee as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the Employees Committee has been duly certified by the National Labor Relations Board as the exclusive bargaining representative of our employees, in an appropri- ate unit or units. DUQUESNE UNIVERSITY OF THE HOLY GHOST (Employer) Dated By (Representative) (Title) 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 compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully furnish financial or other support or act in any advisory capacity to the Employees Committee of our employees. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL NOT recognize the Employees Com- mittee as the representative of any of our employees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until the Employees Committee has been duly certified by the National Labor Relations Board as the exclusive bargaining representative of our em- ployees, in an appropriate unit or units, TRIAL EXAMINER'S DECISION ABRAHAM H. MALLER, Trial Examiner: On May 13, 1971, General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called Local 249, filed a charge against Duquesne University of the Holly Ghost, herein variously called the Respondent or the University. Upon said charge, the Regional Director for Region 6 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel a complaint against the Respon- dent, alleging that Respondent dominated and interfered with the administration of the Employees Committee, a labor organization, and rendered unlawful assistance and support to the Employees Committee, in violation of Section 8(a)(2) of the National Labor Relations Act, as amended (29 U.S .C. Sec . 151, et seq. ), herein called the Act, and interfered with , restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. In its duly filed answer, the Respondent denied any violations of the Act. Affirmatively, Respondent's answer alleged that the Respondent recognizes and supports many employee, student, and faculty committees on the campus, one of these being the Employees Committee, but it has never attempted to dominate any of them ; that comnttees function in all areas of the Respondent 's major divisions of endeavor and the recommendations are given serious consideration in the formulation of Respondent 's policy I DUQUESNE UNIVERSITY 895 and solutions to specific problems; that all of these committees frequently and usually meet on Respondent's time and on Respondent's property, and their reports, notices, and minutes are usually and customarily produced and distributed at Respondent's expense. Pursuant to notice, a hearing was held before me at ,Pittsburgh, Pennsylvania, on October 7 and 8, and on 'November 2, 1971. At the opening of the hearing, counsel for the General Counsel, pursuant to previous notice, moved to amend the complaint by adding an allegation that in or about June 1971, the Respondent promised and (granted an 8-percent wage increase to all nonexempt ,'employees.' The motion to amend was granted. During the course of the hearing, counsel for the General Counsel ;moved to further amend the complaint to allege that on or about November 14, 1970, and at all times thereafter, Respondent negotiated terms and conditions of employ- ment with the Employees Committee as the representative of all nonexempt employees at a time when the Employees Committee did not represent an uncoerced majority of said employees and following the filing of a representation ,petition on behalf of Local 249. The motion was granted. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. Briefs were filed on December 3, 1971, by the Respondent and by the Party in Interest and, on December 6, 1971, by counsel for the General Counsel. Upon consideration of the entire record2 and the briefs, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Pennsylvania corporation with its facili- ties located at Pittsburgh, Pennsylvania, is engaged in the operation of a private nonprofit university. During the 12- month period immediately preceding the issuance of the complaint herein, Respondent had gross revenues in excess of $1 million, exclusive of contributions not available for use for operating expenses. During the same period of time, Respondent received goods and materials valued in excess of $50,000 directly from points outside the Com- :monwealth of Pennsylvania for use at its Pittsburgh, Pennsylvania, facilities. Respondent's answer admits, and I find and conclude, that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Board to assert jurisdiction here. II. THE LABOR ORGANIZATIONS INVOLVED General Teamsters, Chauffeurs and Helpers Local 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. i The term "nonexempt employees" as used during the hearing and in this Decision is used to describe employees who are not exempt from the Fair Labor Standards Act 2 The General Counsel has filed a motion to correct the transcript m certain particulars and, in addition, points out that Resp Exh 2 was incorrectly included in the file of Respondent's exhibits, as the exhibit was Employees Committee is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ISSUES 1. Whether the Respondent dominated and/or assisted the Employees Committee in violation of Section 8(a)(2) and (1) of the Act. 2. Whether the Respondent by negotiating terms and conditions of employment with the Employees Committee as the representative of all nonexempt employees at a time when the Employees Committee did not represent an uncoerced majority of said employees and following the filing of representation petitions on behalf of Local 249, raising a question concerning representation among certain employees represented by the Employees Committee, violated Section 8(a)(1) and (2) of the Act. 3. Whether the increase in the annual wage raise given to all nonexempt employees was violative of Section 8(a)(1) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Origin of the Employees Committee3 Except in some minor particulars, the facts of this case are not in dispute . In the summer of 1970, Respondent withdrew the plan by which it granted a remission of tuition for employees. At that time, Mrs. Rebecca Henry circulated a petition among her fellow employees on working time for the purpose of presenting a request to Father McAnulty, president of Duquesne University, that the remission of tuition be reinstated. Also during that summer, the University revoked the parking privileges of the nonexempt employees and Kathleen Couderc circulat- ed a petition among the employees for presentation to Father McAnulty, requesting that parking privileges for employees be reinstated. When Henry presented her petition to Father McAnulty, he explained that he could not take any action on individual cases. He told her that he had already received Couderc's petition with regard to parking, and suggested that the best course for the employees to handle the apparent discontent among them was to get together so that they could speak with a united voice. When Couderc called Father McAnulty to ask if any action would be taken on her petition, he explained to her that he could not deal with the employees one at a time, but that they would have to organize and "elect a voice" and suggested that she contact Henry. Couderc and Henry decided to go ahead and organize the employees. They informed Father McAnulty of their intention and he suggested that they contact Shelton F. King, director of personnel services of the University, in order to get the names of all the employees who would be involved in such an organization. Couderc and Henry did; so and obtained from King a list of all the nonexempt; not received in evidence No opposition to said motion has been filed Upon consideration of the motion , it is hereby ordered that the transcript be corrected as requested It is further ordered that Resp Exh 2 be treated as a rejected exhibit i The matters set forth under this heading occurred outside of the 10(b) period and do not form the basis for any finding of violation of the Act 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees of the Respondent, broken down into work areas. King suggested that they elect one person from each area. Couderc and Henry changed the areas and rear- ranged the list. Couderc and Henry then decided to call a general meeting of all nonexempt employees not already represented by Local 29,4 after first securing the approval of Father McAnulty. King secured a room for this meeting. They then typed ballots for election of representatives and an accompanying letter, all of which were printed by King on university stationery and distributed by the University's interoffice mail. The correspondence accompanying the ballots which were sent to the nonexempt employees read as follows: With the approval of Father McAnulty and the Administrative Council and the assistance of Mr. Shelton King, will be a meeting of all employees not represented by Local 29 on Monday, September 28, 12:00 noon, in the Duquesne Room of the Student Union for the purpose of electing a "voice." This meeting is for the benefit of all, and we urge your attendance. Arrangements should be made within each office to free as many employees as possible. Mr. King will give a few brief remarks after which a closed session will follow. Please bring the enclosed nomination form with you as we will explain election procedures at this time. Please remember that this is a meeting for employees by employees and can only succeed with your help and cooperation. The foregoing letter was signed by Henry and Couderc. The meeting which followed was open to all nonexempt employees, approximately 200-225 in number. At the meeting, King spoke briefly.5 King thanked the 150 to 200 employees present for attending, said that he was pleased with the fact that they were getting together, and stated that their organization had legal sanction. He thereupon left the meeting.- Henry explained to those present that the purpose of the meeting was to organize a union. She further explained that the Employees Committee would present overall problems and desires of the employees to the administration and to act "as a union steward" on problems which might affect only one or a few of the employees. Couderc and Henry were elected cochairwom- en. Although the meeting was held during the employees' lunch hour, they were not docked for the overrun time which the meeting consumed. On November 5, 1970, the nonexempt employees held another meeting at which the candidates for membership on the Employees Committee spoke. Following this meeting, the employees returned their ballots through the interoffice mail. B. Characteristics of the Employees Committee The Employees Committee consists of eight elected representatives from different areas of the University, and two cochairwomen. It has no constitution or bylaws and 4 The University has a collective-bargaining relationship with Local 29 of the Service Employees Union, which represents the custodial and building maintenance employees of the University 5 There is a dispute as to how King happened to be at the meeting Henry testified that King's presence had been requested in order to allay any fears on the part of any nonexempt employees that their attendance would result in reprisals by the University According to Couderc, King requested the opportunity to be present at the meeting It is unnecessary to collects no dues. In short , the Employees Committee has no treasurys The Committee publishes a newsletter called "The Bee," which is printed weekly by the University. Cards authorizing the Employees Committee to represent the signer in collective bargaining were xeroxed on university stationery. All of its expenses are charged to King's budget. Weekly meetings of the Employees Com- mittee are held on University time in a room provided by the University, and members of the Committee are not docked for time spent in these meetings. The first meeting of the Employees Committee after its organization was held on November 13, 1970, within the 10(b) period. The Employees Committee has never bargained with the University for a collective-bargaining agreement , limiting itself to specific proposals such as remission of tuition for employees, sick leave, a dress code, proposals which were submitted through the Staff Relations Committee (dis- cussed below), and acting on individual grievances. C. The Staff Relations Committee Following the approval of the establishment of the Employees Committee, Personnel Director King recom- mended to his superior, Kenneth R. Erfft, vice president and treasurer of the University, that a Staff Relations Committee, herein and in the record referred to as the SRC, be established, comprised of representatives of faculty and administrators and of the various working areas on the campus, to establish priorities in various areas of employer-employee relations and to formulate some improvements or changes in policies , and recommend these to the Administrative Council , herein and in the record referred to as the Ad Council, the governing body of the University.? By letter dated September 14, 1970, Vice President Erfft asked six administrators to serve on the SRC and named King as chairman . Erfft also outlined the SRC's functions and assignments as follows: B. Function of the Committee 1. To review and evaluate personnel policies and related problems in the area of staff employment 2. To develop solutions to these problems 3. To recommend these solutions to the Adminis- trative Council C. Committee Assignment 1. To develop and establish an improved program of position classification 2. To review existing classifications to determine that all administrative and professional positions are, appropriately classified 3. To review and approve or disapprove all requests for promotions and classification change 4. To establish a formal grievance procedure which will include review by the Committee as one of its steps 5. To review existing personnel policies and proce- dures and recommend changes where desirable resolve this conflict 6 The Employees Committee participated in the instant proceeding as a Party in Interest and was represented by independent counsel When asked how the Employees Committee planned to pay counsel , Mary Jane Sherrill, currently a cochairwoman, answered that the Employees Committee was engaged in a fund drive for that purpose r The Ad Council is composed of the president of the University and the vice presidents of all major areas of the University. DUQUESNE UNIVERSITY 897 6. To review all budget recommendations concern- ing the involved employees and approve or disapprove them 7. To establish an ongoing program of upward and downward communication 8. To develop and recommend a wage and salary progression scale appropriate to the plan of position classification developed 9. To determine that University personnel policies and procedures are uniformly followed in all depart- ments and divisions of the University 10. To develop a program for affirmative action in equal opportunity employment and monitor its prog- ress. The SRC met weekly, later biweekly. Couderc and Henry, as cochairwomen of the Employees Committee, sat on the SRC at the invitation of King, but did so under protest.8 As admitted by Personnel Director King, the Employees Committee was the only group whose proposals were required to be submitted to the SRC. When the Employees Committee desired to present a proposal to the Ad Council, it prepared an agenda regarding these proposals and submitted it to the SRC. Each member of the SRC had one vote, and a majority was required to approve a policy decision or policy position. King acted as chairman and frequently gave his "advice and counsel" on matters under discussion and on occasion assigned a member of the SRC to rewrite the Employees Committee proposals; From that point, according to King: .. . the normal procedure was that I would put the recommendation in a form of a memorandum to Dr. Erfft, and it would normally be read and approved by the SRC in its final form. Then it would go to Dr. Erfft for his passing it on to them, and presenting it to the Administrative Council. After approval by the Ad Council, the recommendation was returned to the SRC, and King added what he considered to be "checks and balances" in the implementa- tion of the proposal. In the case of one proposal, viz, relating to sick leave, the Employees Committee was upset with King's changes. Although King envisaged the SRC as the proper channel of communication between the Employees Committee and the Ad Council over conditions of employment of nonexempt employees, it is clear from the record that the Employees Committee did not always utilize this channel of communication. Thus, the Employees Committee took up the question of employee swimming privileges with the Swimming Pool Committee, parking problems with the Security and Parking Committee, and cafeteria service with the manager of the cafetena. It also took up individual grievances with King and Erfft directly. The Employees Committee was unhappy with the necessity of going through the SRC, feeling that there should be a more direct channel of communication between the Employees Committee and the Ad Council. 8 The cochairwomen also protested to the president of the University that with the creation of the SRC "we find that we must now present our problems to a committee, who in turn will review these problems and bring them before the administration, IF they feel they merit administrative attention," and that the nonexempt employees are led "to believe this would Because of the opposition of the Employees Committee to the SRC, the latter was dissolved by Vice President Erfft. At a meeting of the nonexempt employees called by him on April 1, 1971, Vice President Erfft announced the dissolu- tion of the SRC. He stated that the purpose of the SRC had been misunderstood; that it had been created to act as an advisory body to the Employees Committee; that he, himself, would act as advisor to the Employees Committee and would take its proposals to the Ad Council. Personnel Director King testified that at present he knows of nothing that would preclude the Employees Committee from making their recommendations directly to Ad Council, but stated that the Employees Committee is working with him, discussing recommendations with him, and "when we can agree on something, then these are passed on to Ad Council for approval." D. The Grievance Committee The Employees Committee first discussed the need for a grievance committee and procedures in January and February 1971. At the April 1 meeting mentioned above, Vice President Erfft, in addition to announcing the abolition of the SRC, recommended to the employees that they organize committees, suggesting in particular a grievance committee. Vice President Erfft also discussed labor organizations. Without naming any specific labor organization, he said that if the employees decided to affiliate with a labor organization outside of the Universi- ty, and there was a strike downtown in the city of Pittsburgh, the nonexempt employees would be called upon to walk the picket line at any time. In June 1971, Virginia McCaffery and Nancy Bocchino, then cochairwomen of the Employees Committee, present- ed a proposal to Erfft and King with an outline of a grievance committee and procedure that they wanted to have established. The Ad Council approved the establish- ment of a grievance committee, following which the Employees Committee established a plan of electing members to the Grievance Committee by buildings, prepared ballots using university paper, and distributed said ballots through the University's interoffice mail. The Grievance Committee which exists as an arm of the Employees Committee then proceeded to negotiate griev- ance procedure with King. After the procedure had been agreed upon by the Employees Committee and King, it was transmitted as a joint recommendation to Erfft who was to pass it on the Ad Council. E. The Advent of Local 249 On April 4, 1971, Local 249 initiated an organizational campaign in the University and distributed flyers.9 Because of the sympathy which certain members of the Employees Committee had for Local 249's organizational efforts, a petition was circulated among the nonexempt employees that these sympathizers should be removed simply be another middleman or roadblock in our attempt to be recognized as an independent university organization " 9 At first, Local 249 addressed its efforts to all nonexempt employees. Subsequently, for reasons not disclosed in the record, it sought certification of the two proposed smaller units set forth below. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from office. As a result, Couderc and another member resigned from the Employees Committee, and arrange- ments were made for a "vote of confidence" to determine whether Noreen Wabel and Pat Campbell should remain on the Employees Committee. Ballots were distributed through the University's mailing system together with a notice that an election would be held on April 27. The notice stated that the tabulation committee would consist of an employee, a faculty member, and a university administrator. The faculty member was appointed by the president of the Faculty Senate, while Vice President Erfft appointed the administrator. 10 The vote was in favor of removing the alleged sympathizers from the Employees Committee. On April 26, 1971, Local 249 filed two representation petitions (Cases 6-RC-5806 and 6-RC-5807) seeking to represent employees in the following units, respectively: All selling and non-selling employees, including sales clerks, stockroom employees and bookkeepers, at the Duquesne University Book Store; excluding all other employees and guards, professional employees and supervisors as defined in the Act. All employees, including repairmen, pressmen, production clerical employees and mail clerks in the Employer's printing shop; excluding all other employ- ees, office clerical employees and guards , professional employees and supervisors as defined in the Act. The petitions were consolidated by the Regional Director for Region 6 on May 5, 1971, and a hearing was held on May 13, 17, and 18, 1971. The Employees Committee intervened in those proceedings . The petitions are current- ly held in abeyance pending the outcome of the instant proceeding. Following the filing of the petitions by Local 249, King suggested to the Employees Committee that they would need a lawyer and suggested that they contact Mr. William P. Getty of the law firm of Meyer, Unkovic & Scott. Although others at the University suggested other attor- neys to the Employees Committee, the Committee retained Mr. Getty as its counsel. F. Solicitation of Cards On May 12, 1971, the Employees Committee began soliciting authorization cards from the nonexempt employ- ees. The cards read as follows: The undersigned hereby authorizes the Employees Committee of Duquesne University to act as her [his] representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. There is a line for signature. Employees Jo Ann Sarek and Mary Jane Sherrill went to several buildings of the University to solicit signatures for the cards. Sherrill had received permission to change her lunch hour for this purpose after informing her superior that the purpose of the change was to secure cards for the Employees Committee. When Sarek and Sherrill went into the library, they were met by Library Supervisor Ruth Carrol, admittedly a supervisor. Carrol inquired as to their purpose, and they showed her a card and said they would like to get them signed by the nonexempt employees. Carrol asked who - else had signed and was shown the names of the other signers. Carrol told them that she did not want them going through the library holding meetings in different corners of the library, but would have her assistant go through the library and tell the nonexempt employees that if they wanted to sign cards they should come up to the main desk. This was done, while Carrol remained about 5 to 10 feet away . Some employees signed cards; others did not. Wabel, one of those present, inquired as to the purpose of having the cards signed. At this point, Carrol told the employees there that she did not want to have a meeting in the library and that if the girls were going to sign cards, they should sign them and get back to their desks. This ended the episode. Sherrill then returned to her office and ate her lunch there , having been absent from her job more than the length of the lunch hour. She was not docked for being late. G. The Pay Raise The University customarily grants annual increases in pay effective July 1 of each year for the administrative and clerical personnel, and effective September 1 for the faculty. Except for 1967 or 1968, when the clerical employees received an equity adjustment , the pay raise for the clerical employees had been $15 per month. On July 1, 1971, the University granted all administrative and clerical employees an increase of 8 percent. The faculty was also given an 8-percent increase effective September 1, which was held up by the freeze. The 8-percent increase was in most instances greater than the raise given in previous years. In some instances, it amounted to almost double that which had been previously granted. H. Concluding Findings 1. Respondent's affirmative defense As previously noted, the Respondent pleaded an affirma- tive defense : that it recognizes and supports many employee, student, and faculty committees on the campus, but has never attempted to dominate any of them; that unlike industry and commerce, committee participation is an integral part of academic administration , and commit- tees function in all areas of the Respondent 's major divisions of endeavor , and their recommendations are given serious consideration in the formulation of Respon- dent's policy and solutions to specific problems. Among the committees referred to are: a Safety , Security and Parking Committee ; a Search Committee ; a Science Committee; a 24-Hour Open House Committee; a Faculty Senate ; a local chapter of American Association of University Professors; an Athletic Committee; a Budget Committee; the Administrative Policy Committee; the Council of Deans; the College Council of the Colleges of Arts and Sciences ; committees of the College of Nursing, the College of Law, the College of Pharmacy, and the 10 The appointment of the neutral members of the tabulation committee was made at the request of the Employees Committee. DUQUESNE UNIVERSITY 899 College of Education; the Committee on Tenure; the Library Committee; the Swimming Pool Committee; the Space Committee and a Faculty Handbook Committee. All of these committees frequently and usually meet on Respondent's time and on Respondent's property, and their reports, notices, and minutes are usually and customarily produced and distributed at Respondent's expense. Employees of Respondent, whether faculty, administration, or staff (nonexempt) are not docked for time spent in attendance at committee meetings during working hours. The foregoing does not constitute a defense to the complaint. Respondent admits that the Employees Com- mittee is a labor organization.ii The mere fact that it is denominated as a committee does not change its status as a labor organization or permit the Respondent to treat it in any manner other than as a labor organization. Nor may it assist the Employees Committee because it assists commit- tees which are not labor organizations. And even if among the committees enumerated above there might be a labor organization (such as possibly the local chapter of the American Association of University Professors),12 this would not entitle the Respondent to assist the Employees Committee. Dennison Mfg. Co., 168 NLRB 1012, 1018, enfd. 419 F.2d 1080 (C.A. 1), cert. denied 397 U.S. 1023. 2. Support and domination Section 8(a)(2) of the Act, in pertinent part, makes it an unfair labor practice for an employer "to dominate or interfere with the . . . administration of any labor organization or contribute financial or other support to it." Turning first to the question of support, a review of the cases indicates that not every act of assistance is prohibit- ed. Thus, it has been held that minor assistance to an affiliated union does not violate the Act. H. & H. Plastics Mfg. Co., 158 NLRB 1395, 1396-1397, enfd. 389 F.2d 678 (C.A. 1); Sunnen Products, Inc., 189 NLRB No. 132; Hesston Corp., Inc., 175 NLRB 96. Also to be considered is the degree of dependence of the labor organization on the support which the employer gives to it. St. Joseph Lead Company, 171 NLRB 541. In the instant case, the Employees Committee is completely dependent on the support which it receives from the University. It collects no dues and has no treasury. It meets on university premises, and Employee Committee members are not docked for time spent in attendance at meetings.13 Ballots for the various elections were printed at university expense and were distributed through the University's interoffice mail. Voting was conducted on university time. The Employees Committee's weekly newspaper, "The Bee," by which it communicates with the nonexempt employees, is printed at university expense and distributed through the University's interoff- ice mail. In short, the Employees Committee is completely See, also, N L R B v Cabot Carbon Co, 360 U S 203, 218 is I do not, of course, by the foregoing statement find or imply that the American Association of University Professors is a labor organization The matter is not before me i3 In contrast, Local 29 does not meet on university premises, except when that union held a steward's election As King testified "We've allowed them to use the university facilities, the Duquesne Room, and I dependent upon the University' s assistance. Indeed, in such a situation, the Board has held that the financial support which the employer provides is another method of control. Tuscarora Plastics Co, 167 NLRB 1059, 1060. As has been pointed out, "[t]he difference between 'domina- tion' and mere `support' is one of degree." Koehler's Wholesale Restaurant Supply, 139 NLRB 945, 953, modi- fied in other respects 328 F.2d 770 (C.A. 7). 1 therefore find and conclude that the Respondent unlawfully supported the Employees Committee, in violation of Section 8(a)(2) of the Act. Utrad Corporation, 185 NLRB 434. In the usual sense, the term "domination" connotes conduct by which the labor organization involved is made subservient to the wishes of the employer who thereby influences the labor organization in the demands which it makes for the employees. However, for a finding of domination, it is not necessary that the employer actually dominated the labor organization. It is sufficient for such a finding that the employer has the ability to do so. Thus, it has been held that there is domination where "[t]he structure of this organization accorded Respondent `the implicit power to control the composition of the Commit- tee by exercising its managerial power to transfer, promote, or discharge the employee representatives.' " Tuscarora Plastics Co, supra at 1059, quoting from Hydraulic Accessories Company, 165 NLRB 864, 868. See, also, Holland Manufacturing Company, 129 NLRB 776, 785, enfd. 292 F.2d 840 (C.A. 3). But compare Ladish Company, Texas Division, 180 NLRB 582, 584. The structure of the Employees Committee falls within this class. Thus, members of the Employees Committee are elected by areas of the University. Clearly, the University has the power to alter the membership of the Employees Committee by transferring, promoting, or discharging the employee representatives who constitute the Employees Committee. Domination may also be achieved by the employer's setting up procedures by which it impedes and frustrates the labor organization in its attempts to secure benefits for its members and thereby impairs its effectiveness . Dennison Mfg. Co., supra, at 1016; St. Joseph Lead Co., supra This is what was done in the instant case by the creation of the SRC by which the University could control and modify the demands of the Employees Committee before they reached Ad Council. And the record is clear that the Employees Committee considered this to be the function of the SRC. As noted above, they protested the formation of the SRC in a letter to President McAnulty, and they sat on the SRC under protest. Because of their opposition to the SRC, the latter was eventually dissolved. However, the Respondent's control of the Employees Committee has continued. As Personnel Director King testified, the Employees Commit- tee is working with him, discussing recommendations with him, and "when we can agree on something, then these are passed on to Ad Council for approval." 14 Further evidence of control is Personnel Director King's think there were morning and afternoon periods when they had this for balloting, and I don't think that we docked anybody if they happened to be a few minutes late that particular time" However, Local 29's steward is not docked for time spent in discussing grievances with King, nor is the steward docked when Local 29's business agent comes to the campus to discuss problems with him i' The composition of the Employees Committee has changed since its (Continued) 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suggestion to the Employees Committee that it retain counsel when Local 249 filed its petitions , at a time when the Employees Committee had no means of paying an attorney, and his suggestion of the particular attorney whom the Employees Committee selected. This demon- strates the pervasiveness of Respondent 's control of the Employees Committee . Cf. Huberta Coal Co., 168 NLRB 122, enfd. 408 F.2d 793 (C.A. 6).15 In view of all the foregoing, I find and conclude that the Respondent dominated and interfered with the administra- tion of the Employees Committee and contributed finan- cial support to it, in violation of Section 8(a)(2) and (1) of the Act. 3. The Midwest Piping principle The General Counsel further contends that Respondent's continued bargaining with the Employees Committee as the representative of all nonexempt employees, after Local 249 filed petitions seeking to represent certain of these employees, must be viewed as violative of the Act under the Midwest Piping principle.16 The General Counsel further points out that the Respondent continued to deal with the Employees Committee after the filing of the petitions, notwithstanding the fact that the majority status of the Employees Committee has never been substantiated. The Respondent and the Employees Committee do not dispute the foregoing, nor does the Respondent dispute the fact that it never demanded formal proof of majority status from the Employees Committee.17 They contend, however, that the General Counsel has failed to establish a prima facie case for the application of the Midwest Piping principle in that the General Counsel did not submit any evidence as to the appropriateness of the units sought to be represented by Local 249. William Penn Broadcasting Company, 93 NLRB 1104, 1106. In view of my finding and conclusion that the University unlawfully supported and dominated the Employees Committee, the issue as to the applicability of the Midwest Piping principle becomes academic, as the remedy to be provided, assuming that the University violated the Midwest Piping principle, would be no greater nor more extensive than the remedy which is customarily prescribed where unlawful support and domination is found. 4. The pay raise The General Counsel contends that the increased pay raise granted to all nonexempt employees on July 1 was violative of Section 8(a)(1) of the Act. He points out that the raise was given less than 2 months after Local 249 filed inception it appears that the Employees Committee as currently constituted is less militant in desiring to present its demands directly to Ad Council i5 The General Counsel contends further that the Respondent unlawful- ly assisted the Employees Committee by permitting solicitation of authorization cards by the Employees Committee during duty hours and has aided the solicitors' efforts in securing signatures to the cards The reference is to the isolated instance in which Sherrill received permission from her superior to change her lunch hour and then went with Sarek to the library to solicit signatures to authorization cards The record discloses that Librarian Carrol took no part in the conversations and did not suggest or indicate in any way to the library employees that they sign authorization cards Not only was this an isolated incident, but it is clear from the record that Carrol did not attempt to influence the library employees to sign the its representation petitions. Because the pay raise was substantially greater than the normal pay raise granted each year, the General Counsel argues that it constituted an attempt to sway employees against representation by Local 249. I cannot agree . In the circumstances of this case , the fact that the pay raise on July 1, 1971, was greater than those given in previous years does not give rise to the inference that it was given in an attempt to sway the nonexempt employees. The 8-percent pay raise was given to all employees of the University, some 2,000 in number, including not only the clerical employees, but the adminis- trative employees and faculty as well. I find it difficult to believe that the University's purpose in granting an increased wage rate to some 2,000 employees was con- ceived for the purpose of swaying the attitudes of some 200-225 clerical employees-a case of the tail wagging the dog. See Nalco Chemical Co., 163 NLRB 68, 71; Fleming & Sons of Colorado, Inc., 147 NLRB 1271, 1284; Derby Coal & Oil Co., Inc., 139 NLRB 1485, 1486. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the operations of the Respondent set forth in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) and (1) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that it cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act.is CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Both Employees Committee and Local 249 are, authorization cards Insofar as solicitation during duty hours is concerned, it does not appear that the Respondent had any rule prohibiting such practice Accordingly , I do not base my finding of support and assistance on this incident 16 Midwest Piping and Supply Co, Inc, 63 NLRB 1060,1070-71 17 Respondent argues that there was no need for such a demand , because some 150-200 employees out of a complement of 200-225 nonexempt employees attended the meeting at which the Employees Committee was created However, the fact that employees attended a meeting called for all nonexempt employees does not indicate that they, or a majority of them, selected the Employees Committee to represent them. I N St Joseph Lead Company, 171 NLRB 54 I, In I DUQUESNE UNIVERSITY individually, labor organizations within the meaning of Section 2(5) of the Act. 3. Since on or about November 13, 1970, and at all times thereafter, Respondent had dominated and inter- fered with the administration of the Employees Committee and has contributed financial and other support to it in violation of Section 8(a)(2) and (1) of the Act. 901 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following. [Recommended Order omitted from publication.]