The University of Chicago

190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The University of Chicago and College, University and School Employees' Union Local 321, Service Employees' International Union, AFL-CIO and Local 1657, American Federation of State, County, and Muncipal Employees' Union, AFL-CIO. Case 13-CA-10848 April 26, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On October 31, 1973, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recommended Order. We agree with the Administrative Law Judge's conclusion that the practice of Local 321, Local 1657, and Respondent in allocating cleaning areas between the two locals was an inextricable, albeit inexplicit, part of the bargaining history that led up to Respondent's contract with Local 321 and was necessarily embodied in the contract's recognition clause. We also agree that Respondent violated Section 8(a)(5) and (2) of the Act when, midway in the term of its contract with Local 321, it trans- ferred2 employees in classifications represented by Local 321 into Local 1657's unit and assigned the work, which they or other Local 321 members had been doing both before and since the Local 321 i Though not excepting to the Administrative Law Judge's conclusion that the Board has jurisdiction in this case, Respondent contends that jurisdiction as to the classifications involved here whose members work in Respondent's hospital complex cannot be premised on the "50 percent" test enunciated in Duke University, 194 NLRB 236, and 200 NLRB No 12, which the Administrative Law Judge applied in finding jurisdiction. Respondent's contentions have no merit as regards the 19 Local 321 janitors in the Biological Sciences Division whose work areas it changed, since, even assuming that they constituted a separate classification , all worked in the academic areas of Respondent's hospital complex and thus all worked less than 50 percent of their time in hospital or hospital -related areas. As regards Local 1657, it is clear that we have jurisdiction for purposes of finding that Respondent unlawfully assisted it in violation of Sec. 8(a)(2), since Local 1657's unit clearly included statutory employees who were benefited by the dues and fees payments of the transferred Local 321 employees and the enlarged membership and work areas Local 1657 obtained in connection with the transfers, and Local 1657 is therefore a labor organization within the meaning of Sec. 8(aX2). 2 Technically, Respondent did not "transfer" any Local 321 members into Local 1657's unit. It simply laid off Local 321 members and gave them contract had been executed, to employees represent- ed by Local 1657. This action, as the Administrative Law Judge concluded, was not merely a breach of the recognition clause of Respondent's contract with Local 321,3 but was a direct repudiation of it and the terms and conditions of employment concluded pursuant to it. Were an employer permitted to do what Respon- dent did here, that is, take work embodied in the bargaining history and recognized classifications of one union, assign it to other of its employees represented by another union at the same location, and transfer to the latter unit or lay off the former unit's members who had been performing the work, contracts could be eviscerated at the employer's will. The possibilities for circumventing contract terms by such action are well illustrated here. Because of the transfer of Local 321 members and reassignment of their work, Respondent was able to accomplish the light housekeeping tasks the Local 321 members had formerly performed by using Local 1657 members who earned as much as $.80 an hour less than Local 321 members would have earned for doing the work. We are not here holding that the recognition clause of a contract and the workplace practices underlying it absolutely bar an employer's removing work embodied in the contract classifications from a particular union's unit during the contract term. It is well established that an employer may, after the necessary bargaining, terminate work done by the union's members at a particular location and subcontract it,4 transfer it elsewhere,5 or introduce different methods of operation at the same location,6 even though such action is taken during the contract term and results in the elimination or reduction in size of the unit involved. Notwithstanding these results, such action is permitted as an accommoda- tion to management's responsibility for determining the allocation of the firm's capital investment.7 Here, however, we are not concerned with a managerial the opportunity to seek work elsewhere or be rehired within classifications represented by Local 1657. Under these circumstances, however, the entry of the Local 321 members into the Local 1657 unit was involuntary, since it was compelled by the threat of job loss if they did not make the change, and is therefore most aptly described as a transfer 3 Since any defense as to the propriety of defemng the contract questions involved here to arbitration was neither raised by Respondent nor litigated at the hearing, the Administrative Law Judge properly determined that it had been waived. 4 Cf., e.g, Florida-Texas Freight, Inc., 203 NLRB No 74; Howmet Corporation, 197 NLRB 471 5 Cf e.g, American Needle & Novelty Company, 206 NLRB No. 61; Weltronic Company, 173 NLRB 235 6 Cf, e.g , Atlanta Daily World 192 NLRB 159. 7 As the Board noted in American Needle, supra, it is the extent to which the decision to subcontract or relocate work involves "a significant investment or withdrawal of capital affecting the scope and ultimate direction of the enterprise" that determines whether management is obligated to bargain about the decision itself . The effects of such decision on the unit involved must, of course, normally be bargained about. 210 NLRB No. 19 THE UNIVERSITY OF CHICAGO determination to have employees at a particular location cease doing work and to subcontract it or transfer it to other plants elsewhere. The same work Respondent took from Local 321's members contin- ues to be performed at the same location by Respondent's own employees. The only significant difference is that the work is being performed by employees represented by a different union and having different wages and working conditions from those embodied in Respondent's contract with Local 321. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Orders of the Administrative Law Judge and hereby orders that Respondent, the University of Chicago, Chicago, Illinois, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. 8 The Administrative Law Judge ordered that Respondent make whole former Local 321 unit members transferred to the Local 1657 unit for any loss of pay suffered by reason of the transfer and for any dues , fees, and assessments paid by them to Local 1657, and also ordered Respondent to make whole Local 321 for any dues , fees, or assessments it lost because of the transfer of Local 321 members. Respondent contends that this is a form of "double indemnity" which cannot be sustained . No double indemnity will occur, however. Since Local 321's contract contained a union -security clause and the transferred Local 321 members would have had to pay Local 321 dues and fees uniformly required to retain their jobs had they not been transferred, Respondent will be entitled to offset against the backpay to the Local 321 members the amount of dues and fees, excluding interest, it will pay for each to Local 321 pursuant to the Administrative Law Judge's make-whole order DECISION FINDINGS OF FACT WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing on July 16 and 17,'1973,1 upon a complaint issued by the Regional Director for Region 13 and amended at the heanng.2 The complaint alleges that the Respondent violated Section 8(a)(1), (2), and (5) of the Act, by unilaterally transferring 14 janitors during a contract term from a bargaining unit represented by College, University and School Employees' Union, Local 321, Service Employees' International Union, AFL-CIO (herein called Local 321), to a bargaining unit represented by Local 1657, American Federation of State, County, and Municipal Employees' Union, AFL-CIO (herein called Local 1657),3 thus causing said employees to suffer a loss of pay and other benefits; by unilaterally modifying the recognition clause of a contract between the I The transcript is hereby corrected. 2 The principal entries of formal papers arc as follows: Charge filed Aug., 30, 1971; complaint issued May 16, 1973; Respondent's answer filed May 30, 1973, hearing held in Chicago, Illinois, on July 16 and 17, 1973; briefs filed by General Counsel and Respondent on October I, 1973 3 I find that College, University and School Employees' Union, Local 321, Service Employees' International Union, AFL-CIO, and Local 1657, 191 Respondent and Local 321 during the contract term; and, derivatively, by rendering unlawful assistance and support to Local 1657, in which union the aforementioned janitors became members after their transfer from the Local 321 bargaining unit. The Respondent claims that it was justified in making the transfer because it bargained with Local 321 over the issue, and because the transfers were made without union animus and solely for business reasons. This case presents the issue of whether an employer midway in the term of a contract may unilateral- ly transfer bargaining unit employees to another unit and thereafter perform the work previously done by these employees with other employees who are working under different contract provisions at a lower rate of pay. I conclude that it may not. A. Facts Relating to the Board's Jurisdiction Since its decision to assert jurisdiction over private, nonprofit colleges and universities in Cornell University, 183 NLRB 329 the Board has asserted jurisdiction over this Respondent in two different cases. In University of Chicago Library, 205 NLRB No. 44, a complaint case, the Board found the Respondent guilty of a violation of Section 8(a)(1) and (2) of the Act in regard to the collective- bargaining relationship existing with certain of its employ- ees assigned to the University library. In University of Chicago, 202 NLRB 69, the Board directed an election among certain classes of employees in the University Biological Sciences Division, with the statement that: [T ]here is nothing in the record to show that 50 percent or more of the worktime of employees in each included classification, taken as a group, is spent on duties which are clinical or intimately related to the operation of the hospitals. In the absence of such evidence, we shall assert jurisdiction herein on the basis of the 50-percent test recently enunciated in Duke University . . . (citing 194 NLRB 236).4 The representation case involved a large number of technicians in medically related fields. This case involves janitors who clean the medical-academic complex of buildings located on the University campus. This group of buildings houses hospital rooms, medical school, and other classrooms, research laboratories, offices, cafeterias, and miscellaneous areas. There is located on the University of Chicago campus, between 58th and 59th Streets, and Ellis Avenue and Maryland Avenue, a series of connected buildings denomi- nated for some purposes as the University of Chicago hospitals and clinics. All functions carried on in these buildings have, with minor exception, been placed admin- istratively under the Biological Sciences Division (BSD) of the University of Chicago. The hospitals, with two exceptions, operate under the supervision of the director of hospitals and clinics; he reports to the dean of the BSD. American Federation of State, County, and Muncipal Employees' Union, AFL-CIO, are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 4 As noted in the University of Chicago case, the Board modified its Duke University doctrine in a second Duke University case, reported at 200 NLRB No. 13. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The names attached to the 11 or so buildings which comprise this complex in some instances describe the activities which take place inside; in other instances, the names merely memorialize a donor to the University but house university functions which are related only tangen- tially, if at all, to the treatment of patients and the dispensing of medical and hospital care. Thus, the area denominated as the Wyler Children's Hospital is devoted largely to the care of pediatric patients. The Chicago Lying-In Hospital is devoted largely to the care of obstetrical and gynecology patients. In a medical care facility utilizing a less pretentious nomenclature, such areas might be designated as the obstetrics wing or the pediatric wing. On the other hand, the Albert Merritt Billings Hospital, located at the central portion of this series of connected buildings, is not entirely a hospital but is a building containing, on various floors, laboratories, class- rooms, and offices, and on other floors, rooms devoted entirely to patient care. The Pritzker School of Medicine utilizes a portion of this building which is known as the P corridor of Billings. This area is principally devoted to medical classrooms, libraries, and laboratories. M corridor and S corridor of the Billings Hospital is likewise devoid, for the most part, of facilities devoted to patient care. The Abbott Memorial Building contains no facilities relating to patient care, while the Argonne Cancer Research Hospital has certain floors on which patients are treated and other floors where space is devoted exclusively to federally funded research activities sponsored by grants from the Atomic Energy Commission. The Bobs Roberts Hospital is only partially a hospital. For the most part, it is a building which houses research and administrative facilities. When viewed as an administrative part of the Respon- dent's table of organization rather than in terms of geography or building area, the buildings in question are, as noted supra, under the general supervision of the dean of the Biological Sciences Division (BSD), who reports to the president and provost of the University, and ultimately the board of trustees. The University is controlled by a board of trustees who ultimately approves an annual operating budget for the entire University which is in excess of $100 million. There are several divisions of the University, each of which, like the BSD, has a dean who reports to the president for administrative matters and to the provost for academic matters. BSD is the largest of these divisions. Among the others are the extension division, the social services division, the college, the physical sciences division. There are also several professional schools, including the law school, the school of business administration, the graduate library school, graduate school of education, and the school of social services, all of whom are headed by a dean who reports to the president and the provost. About two-thirds of the University's 8,000 students are graduate students. The University has more employees than students. It employs about 10,500 persons. Of this number, some 7,500 are regular nonacademic employees. Administratively, all employees, including those involved in this case, are 5 Some six or eight physicians performing obstetrical work in the Chicago Lying-In Hospital receive fees directly from patients or their insurers All other physicians are regarded as University faculty members actually employed by a nonprofit Illinois corporation known as the University of Chicago. The hiring, discipline, and discharge of all of the University' s nonacademic employees is accomplished under the supervision and control of the personnel department, whose concurrence is required in all such matters . These matters must also have the concurrence of the division and department in which the employee works. Labor relations are conducted under the centralized control of the director of personnel, who supervises all matters involving collective bargaining and contract administration, including the processing of griev- ances. All fees and moneys of any kind which are received or disbursed by the University are centrally administered by the comptroller. Hence, student tuition fees of the University Medical School, hospital charges of all kinds received for patient care, grants, and donations including those made for medical purposes, and professional fees received by any of the 600 faculty physicians who provide patient care at the hospital or hospitals,5 are all collected and become University funds centrally controlled by the comptroller. Likewise, paychecks of all University person- nel, including those employed in patient care and all employees involved in this case, are issued by the comptroller. The administrative organization of the BSD, as well as other divisions and schools of the University, is strongly influenced by the policy of "interdisciplinary insemina- tion" instituted by former University President and Chancellor Robert M. Hutchins. In a formal administra- tive sense, there is no medical school. Students seeking an M.D. degree matriculate in the Biological Sciences Divi- sion and take their classes with other students in the same division whose specialty may fall under any 1 of the 15 or 20 departments which are a part of the BSD. Several of those departments-surgery, pathology, radiology, and medicine-are categorized as clinical departments of BSD. Other departments, such as botany and zoology, are also under the general supervision of the dean of the same division. The Respondent insists, and without contradic- tion, that the patient care provided in the 700 patient beds which are found in the University hospitals and clinicse is offered solely as means of providing a means of medical research and medical education, and that the approximate- ly 600 licensed physicians who are on the University faculty and who provide medical care to patients do so for purposes which are wholly ancillary to teaching and research. Such faculty members may, from time to time, teach courses in other divisions of the University and, as a part of their duties, are called upon to participate in University programs and activities outside the BSD bearing no particular relation to medical teaching or the providing of medical care. Despite the subordination of medical care to teaching and research programs, the University hospital does maintain the second largest emergency room service in the Metropolitan Chicago area, and, because of its geographi- cal location, is called upon to furnish medical services to a large number of indigent patients. The BSD also provides who receive no direct payments from their patients or their insurance carriers 8 Hospital beds are normally occupied about 80-85 percent capacity. THE UNIVERSITY OF CHICAGO 193 medical and hospital care to members of the University faculty and administration, as well as to the entire student body. As noted supra, the University hospitals and clinics department functions administratively as a part of the BSD; its director reports to the dean of the BSD, as do the deans of the various BSD departments whose nonclinical academic and research activities are also housed in the 11- building complex involved in this case. For administrative and budget purposes, the University makes no distinction between the clinical and research functions which are carried on in this academic-hospital complex. Except as otherwise provided in collective-bargaining agreements, salaries and wages of all nonacademic employ- ees throughout the University are set by the wage and salary section of the personnel office. All receive the same paid holidays, vacation benefits, life insurance coverage, medical and hospital benefits, and tuition remission benefits. In the event of a vacancy in any division or department, a notice is forwarded by the affected depart- ment to the personnel office. This notice constitutes authority to the personnel office to recruit to fill the vacancy. As noted above, if the department finds an acceptable candidate, his employment must still be approved by the personnel office. For the past 25 years, the University has maintained a collective-bargaining relationship with Local 1657 in a unit which covers approximately 900 employees employed throughout the University. Of this number, about 200 are assigned to the BSD. The unit includes housekeeping and food service employees in residence halls and common departments, general service and food service employees in hospitals and clinics, nursing assistants, laundry workers in the Lying-In Hospital, animal caretakers and laboratory helpers in the BSD, and housekeeping and food service employees in various other locations. For an equal period of time, the University has also maintained a collective- bargaining relationship with Local 321 in a unit composed of approximately 300 employees. The contract with Local 321, like the contract with Local 1657, is umversitywide in its scope. It covers such classifications as service and maintenance classification in the plant department (a universitywide administrative department which provides various forms of building maintenance), store room attendants in the purchasing department, hospital stores attendants in the hospital receiving room, janitors in the University of Chicago press business office, athletic field maintenance men, and various other building mechanics, building engineers, and related functionaries. In neither instance is there a Board certification, inasmuch as the University granted voluntary recognition to the respective bargaining agents long before the Board asserted jurisdic- tion over private, nonprofit colleges and universities. In the Local 321 unit there are about 125 employees who are classified as custodians. Of this figure, some 19 were employed in the BSD at the times which are critical to a resolution of this case. The balance of this classification were employed elsewhere in the University. B. Facts Relating to the Unfair Labor Practices Alleged in the Medical-Academic Complex The original employment of Local 321 custodians at the medical-academic complex took place many years ago when custodians, working under the supervision of the universitywide plant department, were assigned to clean certain portions of the 11-building complex as employees of the plant department, not the BSD. Approximately 6 years before the events here in issue , the dean of the BSD, reacting to comments from various members of the faculty and administrative staff , became dissatisfied with the performance of Local 321 personnel supervised by the plant department, and obtained their administrative transfer to his control in the BSD. Thereafter, these janitorial employees functioned directly under the supervi- sion and control of the dean's office, although, for budget purposes, their compensation was included in the plant department's approved budget and then reallocated by the plant department to the dean's office by an annual interdepartmental fund transfer . Even after this transfer of supervision, a few Local 321 men, who had been assigned to the boilerroom of Billings Hospital, remained under the supervision of the plant department. This latter group is not involved in the present dispute. The 19 Local 321 custodians involved in this case provided janitorial service in certain designated areas of the medical-academic complex. These areas included portions of the Gilman-Smith Hospital, certain corridors on specified floors of the Billings Hospital, a part of north wing, a part of the Armour research lab, and the entire Abbot Memorial Building. In these areas, they were responsible for wet-mopping classrooms , offices, laborator- ies, and corridors, picking up glass and other debris, emptying wastebaskets and ashtrays, and the stepping and waxing of floors. They did no wall washing, a function contracted out in these areas to an outside contractor. It is well established that Local 321 men did not clean any bedrooms, operating rooms, or other areas devoted principally to the immediate treatment of clinical patients. The areas cleaned by Local 321 personnel were areas largely devoted to administration, academic pursuits, research laboratories, and similar matters. The other areas were cleaned by Local 1657 personnel. The division of working areas between the two bargain- ing units was not an arbitrary one. It is uncontested that Local 321 personnel performed a lower quality of cleaning and maintenance than did Local 1657 personnel. For example, Local 1657 employees washed walls, used germicidal detergents, and wet-mopped with far greater frequency than did Local 321 personnel, because the areas which Local 1657 members maintained were principally devoted to patient care and therefore required a much higher degree of cleanliness than did the administrative offices, classrooms, and other areas which were cleaned by Local 321 employees. From time to time, the University would relocate certain offices or laboratories, a fact which tended to blur the original sharp division of jurisdiction between the two units on a clinical-non-clinical basis. On one occasion, when the University desired to utilize Local 1657 employees to clean areas then maintained by Local 321 employees, it engineered a swap between the two locals of certain cleaning areas so that no loss of work was occasioned by either as a result of the changeover . For the most part, employees utilized certain benchmarks, such as 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a doorway or an archway, to delineate the boundaries of their respective cleaning responsibilities. However, there was no occasion reported in the testimony of duplication of effort because members of one local cleaned areas assigned to members of the other local. As of August 30, 1971, a critical date in this proceeding, the University, both Unions, and their respective memberships were all well aware of, and agreed upon, which portions of the medical- academic complex were being cleaned by Local 321 members and which portions were being cleaned by Local 1657 members, and I so find. On September 1, 1970, the University and Local 321 (as well as certain other unions not involved in this proceed- ing), entered into a 2-year contract covering wages, hours, and working conditions of various classifications of employees. The recognition clause of this contract accord- ed recognition to Local 321 for the following classifications and departments: A. Service and maintenance classifications in the Plant Department; B. Storeroom attendants in the general stockroom of the Purchasing Department; C. Athletic field maintenance classifications in the Department of Physical Education for Men; D. Hospital Stores Attendants in the Hospital Receiving Room; E. Janitors in the University of Chicago Press Business Office; F. Building Mechanics, Building Engineers, Ap- prentices, Helpers, and Receiving Attendant in Inter- national House. No specific mention was made in the original contract specifying janitors employed in the BSD, as they were generally regarded to be among the classifications set forth in the plant department despite the departmental reassign- ment of these individuals at an earlier date. Early in 1971, the plant department underwent a retrenchment due to budgetary difficulties and was required to lay off a number of individuals. On May 7, 1971, the University and Local 321, by letter agreement, added a new classification to the recognition clause of the existing agreement, namely "Janitors in the Biological Sciences Division." The letter agreement also added to the agreement a provision calling for departmental rather than unitwide seniority in the Local 321 unit. The net effect of the second modification agreed upon by the parties was to spare the 19 janitors employed in the newly designated BSD category from being bumped by persons who were laid off in other portions of the Local 321 bargaining unit. As the money allocated by the University's board of trustees to the plant department for maintenance was decreased, so the amount customarily reallocated each year by the plant department to the dean's office of the BSD for janitorial maintenance was also sharply reduced. However, the amount of money approved by the trustees for the department of hospitals and clinics, albeit a subordinate agency of the BSD, was not so sharply curtailed. It was, and is, this department which provides immediate administrative supervision and control over the janitorial work performed by Local 1657 members, acting through the hospital general services department. The Respondent also introduced evidence, which was not challenged, that the dean's office of BSD had, over a period of time, received an accumulation of complaints, coming principally from the medical faculty, to the effect that the portion of the medical -academic complex cleaned by Local 321 members was being inadequately maintained. The complaining physicians expressed a continuing desire to have all portions of those buildings under the overall supervision of the BSD maintained to the same level of cleanliness that existed in the patient-care sections. On July 9, 1971, Respondent's director of personnel, Fred D. Bjorling, sent a letter to David Sullivan, then secretary-treasurer of Local 321, in which he asserted that the University was experiencing organizational difficulties stemming from the maintenance of the Hospital's complex by two bargaining units of janitorial employees. He also stated that the University desired to raise the level of sanitation in the portions of the buildings then being cleaned by Local 321 members. He then wrote: "It therefore appears necessary to reorganize the Medical School cleaning activities by making one department responsible. Because the level of cleaning for much of the area must be at a hospital level of sanitation and because the General Services Department [of the Hospitals] does the great bulk of cleaning in the medical complex now, the only feasible solution appears to be to transfer all the Medical School cleaning in the Hospitals to the General Services Department [which supervises the Local 1657 unit ]." The letter went on to point out that an effect of such a reorganization would be that the portion of the Local 321 unit in the Hospitals would be reduced by 14 positions, although five Local 321 members would contin- ue working at Abbott Hall. The letter concluded: "We presently contemplate that the proposed reorganization of Medical School cleaning functions take effect within the very near future. In the meantime, should you desire to confer with us about these contemplated changes , please notify me." When he received the July 9 letter, Sullivan phoned Bjorling and arranged for a meeting between the two of them on July 13. This meeting was devoted largely to an oral explanation by Bjorling of what the Respondent proposed, and the reasons for the proposal. Sullivan told Bjorling that Local 321 had no objection regarding which department of the BSD was placed in supervision over Local 321 members. In response to Bjorling's statement that the University was seeking to upgrade the quality of cleaning, Sullivan replied that he was sure that, with the proper training, his members could perform satisfactorily at any level of cleaning desired by the University. Sullivan objected to any cut in pay for his members, noting that the Local 1657 contract provided, in most instances, for lower pay rates than those received by Local 321 members. A few days later, Sullivan phoned Bjorling, said that he had consulted with his attorney, and voiced the Union's position that the University could not legally take the action it had outlined in the July 9 letter. Bjorling replied that he thought the University was at liberty to do so and that it probably would do so, but promised to let Sullivan know definitely what the Respondent intended to do. THE UNIVERSITY OF CHICAGO On August 13, 1971, Bjorling wrote a second letter to Sullivan. In this letter, he stated that the University definitely intended to implement the plan outlined in the earlier letter in two phases, the first to take place on August 30, 1971, and the second on September 13. Bjorling stated that, on August 30, one-half of the area serviced by Local 321 would be transferred to the jurisdiction of the general services department and Local 1657. On September 13, the remaining area would be transferred. Bjorhng noted that, at the time of the first transfer, seven-named individuals in the Local 321 unit who held the least seniority would be laid off, and, on September 13, the next seven junior employees would be displaced. He offered to bargain over this aspect of the transfer. He suggested that the parties waive the seniority provisions of the existing contract so that the most senior members in the Local 321 unit would be laid off first and could then bid first on jobs which were opening up in the Local 1657 unit as a result of the transfer, leaving those with less seniority to bid thereafter following a later layoff. On or about August 18, several representatives of both Local 321 and the University met in Bjorling's office. They discussed a number of things, including the order of layoff and bidding by displaced Local 321 members on new jobs in the expanded Local 1657 unit. Local 321 agreed to Bjorhng's proposal of layoffs in reverse order of seniority from that which the contract normally would require, so that senior men in the reduced unit could get first crack at the jobs in the other unit. During the course of the meeting, Sullivan made the comment "We are not going to fight you on this thing." Bjorling and the other University represent- atives took these words to mean that Local 321 was agreeing to the basic transfer of work jurisdiction. Sullivan said that, if he uttered the comment at all, it was directed solely at the procedure for implementing the layoff and job bidding, not to the underlying proposal. His basic desire, when faced with the University's insistence on the changeover, was to make the best deal he could in seeing that his members had jobs. He advised his members to accept jobs in the Local 1657 unit under protest. In order to dispel rumors that had been circulating among the affected employees, and to explain first hand the transfer of work and the procedure for layoff and rehire, Bjorling, at Sullivan's request, met with the bargaining unit members in a lecture ampitheatre located in the medical complex. The meeting took place on August 21. Bjorling outlined the facts of the transfer and the reasons prompting the University to take the action in question. He explained that transferees would retain seniority accrued in the Local 321 unit despite the transfer to another unit, and would receive credit for accrued vacation time. He further explained that anyone who did not desire a job in the other unit would receive severance pay. The meeting was punctuated by some heated exchanges. One employee voiced an objection to the changeover, complaining that the job duties in the Local 1657 unit were more demanding than those performed in the Local 321 unit. 7 Before offering jobs in the Local 1657 unit to displaced members of Local 321, the University obtained an agreement from Local 1657 to waive the bidding requirement in the Local 1657 contract which would have given 195 On August 23, the parties had one final meeting at which attorneys for both the University and Local 321 were present. Local 321 asserted that it objected to the changeover and felt that it had legal grounds to block the University's action. On August 30, 1971, it filed the charge in this case. Their legal objections did not prove to be persuasive upon the University, which proceeded with the changeover, as originally indicated. Fourteen unit employ- ees were laid off; of this number, twelve sought and obtained jobs in the Local 1657 unit.? Two others left. Employees transferred into the Local 1657 unit were classified as either grade 10 custodians or grade 2 custodians. One transferee, Kacer, accepted a grade 2 position, found the work too onerous, and left after about 2 months. Some transferees were given grade 10 positions and one has since progressed to a grade 11 leadman position. The rest were given grade 2 positions. At the time of the September 1971, expansion of the Hospitals portion of Local 1657 unit, the complement of employees therein was expanded by 18 additional grade 2 positions and 5 additional grade 10 positions, as those positions are set forth in the Local 1657 contract. Since that time, the total unit complement in the Hospitals has decreased slightly. In terms of ultimate weekly earnings, three of the Local 321 transferees received approximately the same wages after the changeover as before. The balance suffered net reductions in wages ranging from a few cents per hour to as much as 80 cents per hour. Following the changeover, the Local 1657 unit, operating under the general services department of the department of hospitals and clinics of the BSD, had full responsibility for cleaning the entire medical-academic complex, except for Abbott Hall and the small area in the boilerroom at Billings remaining to plant department employees who are members of Local 321 and are not involved in this litigation. The expanded portion of the Local 1657 unit, composed of just under 200 employees, absorbed the transferred employees who were then assigned to janitorial and custodial duties throughout the Hospital portions of the unit, although there is credited testimony that some of the transferred employees still perform, in part, the same duties at the same location they previously performed as Local 321 members. All of the transferees joined Local 1657 pursuant to the union-security clause contained in the Local 1657 contract. The general services department reduced the uniform standard of cleaning it had previously maintained throughout those areas which were subject to its responsibility for the portions of the hospitals complex which housed the medical school. The University main- tains, without contradiction, that the standard of cleaning, while reduced when measured by general services depart- ment standards, was, and is, superior to the standard of cleaning previously applied by Local 321 members before the changeover. Approximately a year after the changeover, Local 321 and the University entered into another 2-year collective- bargaining agreement, now in effect, which replaced the 2- year contract in effect at the time of the changeover. The employees already working in the Local 1657 unit preference in bidding on new jobs opening up in that unit. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD current contract became effective September 1, 1972. The relationship of Local 1657 to the University is currently governed by a 2-year contract, effective April 9, 1973, which replaced the 2-year agreement in effect at the time of the changeover. The recognition clause in the current Local 321 agreement does not contain the phrase "Janitors in the Biological Services Division" which the parties inserted in the previous agreement in May, 1971. It does contain in the recognition clause the phrase "Custodians and Laboratory Supply Attendants in the Biological Sciences Division," a phrase which did not appear in the earlier agreement as originally concluded. C. Analysis and Conclusions 1. The jurisdiction of the Board In Cornell University, supra, the Board reversed a previous decision in Trustees of Columbia University, 97 NLRB 424, and decided to exercise its discretion to assert jurisdiction over certain private, nonprofit colleges and universities. While this discretionary expansion of jurisdic- tion was well within its prerogative, the Board was still faced with a statutory exclusion by which Congress deprived it of jurisdiction over "any corporation or association operating a hospital, if no part of the net earnings inures to the benefit of any private shareholder or individual." Sec. 2(2), LMRA. The discretionary expansion of jurisdiction over nonprofit colleges and universities was bound to rub up against the statutory exclusion of jurisdiction over nonprofit hospitals in the case of nonprofit universities which operate hospitals as a part of their educational mission. The first conflict in this area of the law took place in Duke University, 194 NLRB 236, a representation case, in which the Board, with one dissent, determined that university hospital functions fell under the statutory exclusion even though the balance of the university's operations might fall under the Board's jurisdiction. This rationale was also followed in Loyola University (Chicago) Medical Center, 194 NLRB 234. Accordingly, the Board excluded from a universitywide bargaining unit in which an election was directed by individuals who spent in excess of 50 percent of their time performing hospital-related functions. In a subsequent Duke University case, the Board modified its earlier decision to exclude from bargaining units classifications of employees, rather than individual employees, if the entire membership of the classification taken as a whole perform in excess of 50 percent of their duties in hospital or hospital-related functions. In a representation case, involv- ing classes of technicians employed at the same institution involved in this case, the Board asserted jurisdiction and directed elections in units involving classifications of employees, some of whom have titles which appear clearly to be hospital-related (e.g. electrocardiogram technician, anesthesia assistant, etc.), because the record in that case was silent as to whether these classifications of employees did or did not spend in excess of 50 percent of their time on duties which were clinical or intimately related to the operation of the hospitals. In a more recent decision in The 8 This is the first complaint case in which the question of nonprofit university versus nonprofit hospital jurisdiction has been posed The earlier Cleveland Clinic Foundation, 205 NLRB No. 162, the Board dismissed a representation position, on the basis of the statutory exclusion, which sought an election in a unit of maintenance employees of a nonprofit corporation which devoted 90 percent of the area of the institution to the treatment of sick and disabled persons, despite the fact that the Clinic Foundation also performed some research and educational functions. Both in the earlier University of Chicago representation case and in this case, the Respondent urged the Board to assert jurisdiction. Respondent argued that the University hospitals and clinics and the biological services department are not a definable entity and that they present a unique structure, that all of the University's programs for education, research, and clinical treatment of patients are administered on a functionally integrated basis without any differentiation, and that the 50-percent rule, either as to individuals or classification announced in Duke I and then Duke II, cannot as a practical matter be applied here without inviting chaos in labor relations. In short, the Respondent urges the treatment of this university hospital or hospitals as sui generis. There is much to be said for the University's contention that the educational, research, and clinical aspects of the BSD cannot be segregated so as to assert jurisdiction over one aspect of the operations and decline jurisdiction over another. However, we need not reach the question of whether the facts and circumstances of the University of Chicago hospital operation are so different from the Duke and Loyola operations that they form the basis for a legal distinction. A mechanical application of the Board's rule in Duke lI will suffice to support a jurisdictional finding in this case and thus avoid the labor relations chaos about which the Respondent has voiced certain trepidation .8 The classification of janitor in the Local 321 unit embraced about 120 people employed throughout the University of Chicago campus. Only 19 were employed anywhere in the BSD, either in clinical or nonclimcal areas. The Local 1657 unit embraces some 900 University employees, about 200 of whom are employed under the supervision of an administrative subdivision of the BSD. These facts provide a sufficient premise for asserting jurisdiction under the 50-percent-by-classification rule. Having asserted jurisdiction over the person of the Respondent for any purpose, the Board, like any other court or agency, may maintain it to provide a complete remedy for any violation found. As it is undisputed that the Respondent herein has a gross annual revenue in excess of $1 million, excluding contributions which are not available for operating purposes because of limitations placed on them by grantors, I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. University of Chicago Library, 205 NLRB No. 44. 2. The unfair labor practices alleged A resolution of this case is squarely governed by the literal language of Section 8(d) of the Act, and the cases involved the definition of bargaining units and the direction of elections THE UNIVERSITY OF CHICAGO 197 construction placed upon that language by the Board in C & S Industries, Inc., 158 NLRB 454, 457: It is true, of course, that where, during timely negotiations for a new agreement, an employer has offered to bargain with a union concerning a proposed change in contract conditions and the union had refused to bargain, the employer does not violate his statutory obligation if, following the effective period of the expiring contract, he unilaterally institutes the change. The situation is different, however, where, as here, an employer seeks to modify during the life of an existing contract terms and conditions of employment embodied in the contract and made effective for its term. In the latter situation, a bargain having already been struck for the contract period and reduced to writing, neither party is required under the statute to bargain anew about the matters the contract has settled for its duration, and the employer is no longer free to modify the contract over the objection of the Union. The statutory intent to stabilize, during a contract term, agreed-upon conditions of employment is appar- ent from the provisions of Section 8(d) of the Act, which defines the obligation to bargain. That section of the Act not only imposes an obligation on each party to a contract to refrain from modifying the contract without complying with the notice and waiting period requirements therein set forth, but also expressly provides that the "duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in the contract of a fixed term, if such modification is to become effective before such term and condition can be reopened under the provisions of the contract." In line with that provision, the Board has consistently held that a party does not violate its bargaining obligation when it refuses to discuss the changes proposed by the other party in the terms of an existing contract. The Board has also held that an employer acts in derogation of his bargaining obliga- tion under Section 8(d), and hence violates Section 8(a)(5), when he unilaterally modifies contractual terms or conditions of employment during the effective period of a contract-and even though he has previous- ly offered to bargain with the union about the change and the union has refused. There are many cases in accord. Royal Plating and Polishing Company, 148 NLRB 545; Kinard Trucking Company, Inc., 152 NLRB 449; Scam Instrument Corpora- tion, 163 NLRB 284, enfd. 394 F.2d 884 (C.A. 7, 1968); Huttig Sash and Door Co., 154 NLRB 811, enfd. 377 F.2d 964 (C.A. 8, 1967); Standard Oil Company, 174 NLRB 177; Yale and Towne Mfg. Corp., 171 NLRB 600. In the present case, the area within the hospitals serviced by Local 321 janitors under the terms of the outstanding agreement was not a unilateral assignment by the Respon- dent and thus revocable at its pleasure. The 1970 contract recognized Local 321 for janitorial work in the plant service department. This agreement of necessity included, by that designation, the 19 janitors functioning in the hospitals who were formerly supervised by the plant service department. The undeviating practice of the parties over a long period of time so demonstrates. A mere change in administrative supervision of janitorial activities by the Respondent does not serve to redefine a bargaining unit, nor does an effort to upgrade the quality of cleaning. However, any quibble based upon contract language was removed, and at the instance of the Respondent itself, when, less than 4 months before the initial changeover, the University proposed to amend the contract language to specify "Janitors in the Biological Services Department." Local 321 agreed to this new language . Hence, the literal language of the contract covers both the work and the employees here in question. Respondent argues that, over a period of time, the original division of cleaning responsibility between Local 321 members and Local 1657 members on the basis of clinical areas versus nonclinical areas became inapplicable and impractical, because the constant relocation of functions within the hospital-academic complex blurred former geographical lines of demarcation between the units. This fact, if it is a fact, might be an appropriate matter to discuss during contract negotiations when the question of recognition clause language is on the table. Whether or not the boundary lines can be described or even justified by the use of generic terms , such as clinical or nonclinical, is wholly immaterial to the issues in this case. Respondent and Local 321 struck a bargain in 1970 (which bargain was clarified by mutual consent in 1971) as to which turf belonged to Local 321 for cleaning purposes. The allocation of cleaning areas was an inextricable part of the bargaining history leading up to that contract, and was necessarily embodied within its scope. Respondent's witnesses took the stand to outline with particularity, and with the assistance of detailed maps and drawings, the precise perimeters of the Local 321 cleaning area as of August 30, 1971. Whatever may have been the historical or policy reasons which defined the boundaries of the Local 321 cleaning areas as of the date of the 1970 agreement, and as of the date of the August 30 changeover, there is no doubt in anyone's mind where these boundaries lay. Such boundaries, agreed upon as they were by all parties to the proceeding, defined the geographical scope of the unit in which Local 321 was the recognized bargaining agent at all times material herein, even though the agreement did not mention such areas by corridor, floor, and room number. Even if one were to exclude the practice of the parties over a long period of time in construing the recognition clause of the 1970-72 agreement and were to focus exclusively on the literal language of the May 7 modifica- tion, the result would be the same. The May 7 modifica- tion, in effect at the time of the changeover, recognized Local 321 as the bargaining agent for "Janitors in the Biological Sciences Division." After the changeover, the displaced Local 321 members were still functioning as janitors within the Biological Sciences Division. Instead of tracing their supervision directly within the BSD to an aide in the office of the dean of the BSD, after August 30 and September 13 they traced their line of supervision to the dean of the BSD indirectly through the director of general services department, who in turn reported to the director of hospitals and clinics. However, this latter individual 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reports directly to the Dean of the BSD, so that, in a strictly literal sense, the displaced employees are, to this day, "Janitors in the Biological Division," albeit operating under a revised intramural administrative superstructure. They are also "custodians . . . in the Biological Services Division," to quote the literal language found in the current Local 321 agreement. It follows that the revision of the working areas in the academic-medical complex by the unilateral removal of such areas from the Local 321 unit and the award, in midterm of an existing contract, of these areas to Local 1657 constitutes an impermissible modification of the recognition clause of the Local 321 contract, done in violation of Section 8(d) of the Act. The effect of the removal of working areas from one union's jurisdiction to another union's jurisdiction, and the transfer of employees from one bargaining unit to another as a consequence thereof, was to enable the employer herein to perform the work covered by the Local 321 contract at lesser rates of pay than those called for by the provisions of the applicable contract. The employer herein simply substitut- ed, in lieu of the contract rates contained in the bargaining unit contract, the lower contract rates fo'r custodial work found in another contract which the University had concluded with another union in another unit. The payment of unit employees under a different pay scale thus constitutes an impermissible modification of the wage provisions of the Local 321 contract in midterm, and is likewise a violation of Section 8(d) of the Act. The Respondent argues that the asserted modification of the Local 321 agreement does not constitute an unfair labor practice, within the meaning of Section 8(d) and 8(a)(5) of the Act, because the changeover which took place in August 1971 can amount to no more than a breach of contract, and any finding of a violation of the Act would, in this case, require the Board to construe the meaning and effect of its collective-bargaining agreement with Local 321. The Supreme Court long ago laid to rest any contention that the Board is divested of jurisdiction to find and remedy unfair labor practices because the determination of such issues might involve the interpreta- tion or application of a contract provision. N.L.R.B. v. C & C Plywood, 385 U.S. 421 (1967); N.LR.B. v. Acme Industrial, 385 NLRB 432 (1967); Carey v. Westinghouse Electric Corp., 375 U.S. 261 (1964). The modification of the agreement herein by this Employer was not merely a minor or arguable breach of contract. It amounted to the categorical repudiation of a recognition clause and of terms and conditions of employment which had been concluded thereunder. As such, it struck at the root of the bargaining relationship which then existed between the Respondent, the affected unit members, and their bargain- ing agent. Hence, the Employer's action constitutes a public wrong which Congress clearly empowered the Board to adjudicate and to remedy.9 The Respondent argues, but without great conviction, 9 The Respondent does not argue that the Board should stay its hand for the policy set forth in Collyer Insulated Wire, 192 NLRB 837 As the time limit for filing a grievance under the contract has long since expired, and as the question in issue relates to the scope of a bargaining unit, it is doubtful that deferral would be appropriate here, even if requested Combustion Engineerin& Inc, 195 NLRB 909 However, a defense based upon Collyer that the complaint should be dismissed because the parties in fact agreed upon the modification of the contract which was effectuated by the University in August of 1971, thus satisfying the requirements of Section 8(d). Long ago, the Board, citing several cases of an even earlier vintage,10 stated with respect to agreements to modify the terms of a written contract: We are reluctant to deprive employees of any of the rights guaranteed to them by the Act in the absence of a clear and unmistakable waiver of such rights. Tide Water Associated Oil Co., 85 NLRB 1096, 1098. In Yale and Towne Manufacturing Company, supra at 601, the Board reiterated this policy, stating that a waiver of contract rights must be made in "clear and unmistakable terms, and will not be lightly inferred." In Rockwell- Standard Corporation, 166 NLRB 124, the Board adopted a trial examiner's ruling which was even more emphatic: Even when a "waiver" is expressed in a contract in such broad and sweeping terms, it must appear from an evaluation of . . . . negotiations that the particular matter was fully discussed or consciously explored and the union consciously yielded or clearly and unmistak- ably waived its interest in the matter. p. 132. The most that the Respondent can point to here by way of waiver is Sullivan's statement during one of several meetings that "we won't fight you on this thing" Sullivan says that this statement, even if made, referred only to the implementing procedures suggested for the changeover, not to the underlying proposal. While Respondent's representatives may have taken the remark to mean something else, they were indulging in wishful thinking if they construed it to mean that Local 321 had waived a term or condition of an existing contract and had abandoned its clearly stated objection to the changeover. A month before the meeting occurred at which Sullivan's remark was uttered, Sullivan told Bjorling that Local 321 objected to the changeover on legal grounds. Shortly after this meeting, several union representatives, accompanied by the union's attorney, also told Bjorling the same thing. The filing of the charge on August 30, the day the changeover began to take place, should have disabused the University's officials of any contrary notion. The action of this Respondent in this case confronted the Union with a fait accompli which it was apparently powerless to prevent. In light of these circumstances, it is not surprising that union officials attempted to salvage for their members what they could in the way of orderly transfer procedures by discussing this matter with University officials, rather than peremptorily hanging up the phone or tearing up the letter in which the procedural question was broached. Their action in this regard can hardly be construed as an assent to a major repudiation of the existing agreement. Accordingly, I conclude that Local 321 did not waive any provision of the 1970-72 contract in issue here. I further conclude that, by the incorporation of a similar provision in the 1972-74 contract, changing only the word "janitor" was never suggested or litigated at the hearing , and, accordingly, had been waived. Montgomery Ward and Co, 195 NLRB 725; Hunter Saw Division of Asko, Inc, 202 NLRB 330; MacDonald Engineering Company, 202 NLRB 748. 10 Inland Steel Company, 77 NLRB 1; Dorsey Trailers, Inc., 80 NLRB 478 THE UNIVERSITY OF CHICAGO 199 to the word "custodian" in the current recognition clause, the Union has preserved its position to the present time. Lastly, the Respondent suggests that it cannot properly be accused of bad-faith bargaining because the General Counsel does not allege, and has not proved, that its actions were motivated by union animus. The District of Columbia Circuit, speaking through then Circuit Judge Burger, answered this contention in Fibreboard Paper Products Corporation v. N.L.R.B., 322 F.2d 411, 414 (1963), when it said: It is not necessary to find an anti-union animus as a predicate for a conclusion that the employer violated Section 8(a)(5) which commands good faith bargaining on wages, hours, and terms and conditions of employ- ment. The Supreme Court affirmed this holding . 379 U.S. 203, 214 (1963). Nor is it any defense to this Employer that its actions were prompted by what it regards as business justifications. Such matters may be proper discussion at the bargaining table, but they provide no justification for upsetting a bargain, once it has been struck. The General Counsel alleges that the Respondent also violated Section 8(a)(2) of the Act by unlawfully assisting Local 1657. The allegation in this respect is wholly derivative to a finding of a violation of Section 8(a)(5) of the Act. The facts herein show that the Respondent illegally laid off 14 of its employees and then gave them the option of returning to work in another bargaining unit which had been unlawfully expanded to incorporate the work previously done in another unit. As members of the new unit, the rehired employees were required to join Local 1657 and to pay union dues and assessments. In my judgment, this fallout from the Respondent's principal wrongdoing constitutes an illegal assistance to Local 1657 which had not been properly designated or recognized as the collective-bargaining representative in the unit in which the work in question was required to be performed. I so find. Accordingly, I conclude that the Respondent has also violated Section 8(a)(2) of the Act. Upon the foregoing findings of fact , and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce, as such terms are defined in Section 2(2), (6), and (7) of the Act, both generally and with respect to the specific operations involved in this proceeding. 2. Local 321 and Local 1657 are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 3. All of the following employees of the Respondent, including seasonal and temporary employees working 20 hours or more per week, but excluding supervisory employees, students, office clerical employees , and tele- phone switchboard and drafting room employees , consti- tute a union appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: Service and maintenance classifications in the plant department ; storeroom attendants in the general stock- room of the distribution and warehousing department; athletic field maintenance classifications in the department of physical education for men ; material handlers in the hospital materials management department; custodians in the University of Chicago press business office; building mechanics, building engineers, apprentices, helpers, and receiving attendants in international house; custodians in the research institutes of the Physical Sciences Division; custodians, including janitors, and laboratory supply attendants in the Biological Sciences Division. 4. At all times material herein, Local 321 has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By unilaterally modifying the recognition clause in the 1970-72 contract between itself and Local 321, by unilaterally transferring work required to be performed by contract by employees employed in the bargaining unit described above in Conclusion of Law 4 to employees in another bargaining unit, and by laying off, rehiring, and unilaterally reducing the wages of the aforesaid employees during the term of the 1970-72 contract between itself and Local 321 in violation of the provisions of said contract, the Respondent herein unlawfully modified the terms and conditions of said contract, before the terms and condi- tions of said contract could be reopened pursuant to its provisions, and thus violated Section 8(d) and 8(a)(1) and (5) of the Act. 6. By unlawfully agreeing to require employees to become members of, and to pay dues to, Local 1657 as a condition of employment in the unit described above in Conclusion of Law 4, when Local 1657 was not the duly designated as the collective-bargaining representative of the employees in that unit, the Respondent herein violated Section 8(a)(1) and (2) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY At this late date, unscrambling the egg may prove a somewhat difficult task, but it is far from being an impossible one. The Respondent should not be heard to complain about any administrative inconvenience which it may suffer as a result of the Board's attempt to undo what the Respondent accomplished in 1971 by its own unlawful and highhanded conduct. No remedy would be meaningful which did not restore to the Local 321 bargaining unit the work it lost because of the unlawful changeover of employees which began on August 30, 1971. It is immaterial which department, group , or official in the University's administrative hierarchy supervises the per- formance of these employees as they perform their daily tasks. What is essential is that the former Local 321 unit performs the work in the areas in question under the terms of the Local 321 contract, that former Local 321 members be offered the opportunity to resume performing these duties, that those former Local 321 members who have quit in the interim because of the changeover be offered their former positions, and that these employees and any additional personnel who must be hired or transferred into 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the restored Local 321 unit in order to fill out the necessary complement of employees be covered by the current Local 321 agreement. Employees who were transferred from the Local 321 unit to the Local 1657 unit in 1971 should be made whole for any loss of pay which they have suffered to date because of their reduced earnings while working under the previous and current Local 1657 agreements, and such losses should be computed in accordance with the Woolworth formula," with interest thereon at 6 percent per annum. Local 321 should be made whole by the Respon- dent for the amount of dues and other periodic assessments which it did not receive from former Local 321 members by reason of the reduction of the size of membership following from the changeover, with interest thereon at 6 percent per annum. Employees transferred at the time of the changeover to the Local 1657 unit should be made whole by the Respondent for the amount of any dues and other assessments which they have provisions of the Local 1657 contract with interest thereon at 6 percent per annum. paid to Local 1657 since the changeover by virtue of the requirements of the Respondent should be ordered to cease and desist from engaging in conduct found herein to be illegal, and should be required to bargain collectively with Local 321 as the bargaining agent for employees in the restored unit. Finally, Respondent should be required to post a notice informing its employees of their rights and of the actions it is being required to take in this case. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 12 Respondent, University of Chicago, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with College, University and School Employees' Union, Local 321, Service Employees' International Union, AFL-CIO, as the exclusive bargaining representative of all employees in the bargaining unit heretofore found appropriate in Conclu- sion of Law 4. (b) Unilaterally transferring work during a contract term which is performed in the aforesaid bargaining unit to any other bargaining unit, without the express written consent of the Local 321. (c) Unilaterally changing wages, hours, and other terms and conditions of employment of Local 321 bargaining unit employees during the term of any outstanding collective-bargaining agreement, without the express writ- ten consent of the Local 321. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form labor organizations, to join or assist the above-named Local 321 or any other 11 90 NLRB 289. 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which will effectuate the purposes and policies of the Act: (a) Upon request, bargain collectively with Local 321 as the exclusive bargaining representative of all employees employed in the bargaining unit heretofore found appro- priate in Conclusions of Law 4. (b) Apply the terms and conditions of the current collective-bargaining agreement between the Respondent and Local 321 to the performance of all janitorial and custodial work performed in those portions of the University hospitals and clinics which, prior to August 30, 1971, were cleaned by members of Local 321 pursuant to the previous collective-bargaining agreement between the Respondent and Local 321. (c) Offer to all employees and former employees who were laid off on August 30, 1971, and thereafter, from the Local 321 bargaining unit because of the transfer of work to the Local 1657 bargaining unit their former positions or substantially equivalent positions in the Local 321 bargain- ing unit, without prejudice to seniority or to other rights previously enjoyed. (d) Make whole any employees or former employees for any loss of pay or other benefits suffered by them by reason of the transfer of work from the Local 321 bargaining unit to the Local 1657 bargaining unit, and make whole said employees for any dues, fees, and assessments paid by them to Local 1657, since August 30, 1971, in the manner described above in the section entitled "Remedy." (e) Make whole Local 321 for any dues, fees, or assessments it lost because of the transfer of its members from the Local 321 bargaining unit to the Local 1657 bargaining unit, in the manner described above in the section entitled "Remedy." (f) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay and other payment due under the terms of this recommended Order. (g) Post at its University of Chicago campus copies of the attached notice marked "Appendix." 13 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 13, in deemed waived for all purposes. 13 In the event that the Board 's 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." THE UNIVERSITY OF CHICAGO 201 writing, within 20 days from the date of this Recommend- ed Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We are posting this notice in accordance with the recommended Order of an Administrative Law Judge. The recommended Order was issued after a hearing in a case in which we were found to have violated certain sections of the National Labor Relations Act, as amended. WE WILL recognize and bargain collectively with College, University, and School Employees' Union, Local 321, Service Employees' International Union, AFL-CIO, as the exclusive collective-bargaining agent for employees in a bargaining unit which includes janitorial and custodial employees in the Biological Sciences Division, working in these areas which were cleaned and maintained by members of Local 321 before August 30, 1971. WE WILL apply the terms and conditions of the current collective-bargaining agreement with Local 321 to all employees who perform janitorial and custodial work in the Biological Sciences Division in those portions of the University hospitals and clinics which were cleaned and maintained by members of Local 321 before August 30, 1971. WE WILL offer to all employees and former employ- ees, who were employed to do janitorial and custodial work before August 30, 1971, in the Biological Sciences Division in portions of the University hospitals and clinics and who were laid off when Local 321 bargaining unit work was transferred to another bargaining unit , their former or substantially equivalent positions, without prejudice to seniority or other rights which they have accrued. WE WILL pay to all employees who were unlawfully transferred from the Local 321 bargaining unit on or after August 30, 1971, the difference between what they would have earned under the Local 321 contracts and what they earned in another bargaining unit, with interest at 6 percent per annum . We will also pay to these employees the amount of money they paid to another union in dues and assessments, because they were unlawfully required to become members of that union, with interest at 6 percent per annum. WE WILL pay to Local 321 the amount of dues and assessments which it lost because its members were unlawfully transferred from its bargaining unit to another unit, with interest at 6 percent per annum. Dated By UNIVERSITY OF CHICAGO (Employer) (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 compliance with its provisions may be directed to the Board's Office, Everett McKinley Dirksen Building, Room 881 , 219 South Dearborn Street, Chicago, Illinois 60604, Telephone 312-353-7572.