Wentworth Institute and Wentworth College of Technology, Inc.

WENTWORTH INSTITUTE 345 Wentworth Institute and Wentworth College of Technology, Inc. and Massachusetts Federation of Teachers, American Federation of Teachers, AFL-CIO. Case 1-CA-9535 April 29, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on January 11, 1974, by Massachusetts Federation of Teachers, American Federation of Teachers, AFL-CIO, herein called the Union, and duly served on Wentworth Institute and Wentworth College of Technology, Inc., herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 1, issued a complaint on January 28, 1974, against Respondent, alleging that Respon- dent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on October 4, 1973, following a Board election in Case 1-RC-12627 the Union was duly certified as the exclusive collective-bargaining representative of Res- pondent's employees in the unit found appropriate;' and that, commencing on or about December 17, 1973, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargain- ing repre-entative, although the Union has requested and is requesting it to do so. On February 7, 1974, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On February 19, 1974, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 1, 1974, the Board issued an order transferring the proceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respon- dent thereafter filed a response to Notice To Show Cause. 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. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, the Respondent opposes the grant of the Gen4raltCounsel's Motion for Summary Judgment on the ground that the Union's certifica- tion as exclusive bargaining representative is invalid for, inter alia, the reason§ given in the Respondent's Request for Review in Case 1-RC-12627. Our review of the entire record herein reveals that a representation petition was filed on March 12, 1973, in Case 1-RC-12627 by the Union basically seeking to represent a union of the Respondent's full-time faculty. At the hearing on the petition, the Respon- dent refused to stipulate that it was engaged in commerce or that the Union was a labor organiza- tion within the meaning of the Act. It also contended that the unit employees were not employees but managerial or supervisory under the Act, and that the imposition of collective bargaining upon a faculty of higher education violated the individuals' constitutional rights. In his Decision and Direction of Election of August 21, 1973, as amended on September 10, 1973, the Regional Director found (1) that, on the admitted commerce data, the Respon- dent, a nonprofit educational institution, was en- gaged in commerce under the Act and that it would effectuate the policies of the Act to assert jurisdiction herein; (2) that, on the record evidence, the Union was a labor organization within the meaning of Section 2(5) of the Act; and (3) that, based on established Board law, full-time faculty members were professional employees and not considered managerial or supervisory under Section 2(12) of the Act and were entitled, as employees, to all the benefits of collective bargaining I without any in- fringement of their constitution a1 rights, if they so desired. The Respondent timely filed a Request for Review, again raising the issues of jurisdiction and of the alleged managerial and supervisory status of its faculty and also contending that the Board did not have statutory power to extend its representation case processes to the faculty of a nonprofit institu- tion such as the Respondent. It also urged that the issue of college faculty "employee" status should be referred to rulemaking. On I September '11, 1973, the 1 Official notice is taken of the record in the representation proceeding , Golden Age Beverage Co., 167 NLRB 151, enfd. 415 F.2d 26 (C.A. 5, 1969); Case 1-RC-12627, as the term "record" is defined in Secs. 102.68 and Intertype Co. v. Penello, 269 F.Supp. 573 (D.C. Va., 1967); Follett Corp., 164 102.69(f) of the Board's Rules and Regulations, Series 8, as amended . See NLRB 378, enfd. 397 F.2d 91 (C.A. 7, 1968); Sec. 9(d) of the NLRA. LTV Electrosystemt, Inc, 166 NLRB 938, enfd. 388 F.2d 683 (C.A. 4, 1968); 210 NLRB No. 53 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board denied the Request for Review as it raised no substantial issues warranting review . Thereafter, in the election conducted on September 26, 1973, a majority of the unit employees selected the Union as their representative for the purposes of collective bargaining with the Respondent. Accordingly, on October 4, 1973, the Regional Director certified the Union as the exclusive bargaining representative of the employees in the appropriate unit. In the instant case, the Respondent is seeking to relitigate herein matters that were raised and deter- mined adversely to it in the underlying representa- tion case. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceed- ing alleging a violation of Section 8(aX5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.2 All issues raised by the Respondent in this proceeding were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding.3 We shall, accordingly, grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Massachusetts corporation, main- taining its principal office and places of business at 550 Huntington Avenue and 30 Evans Way, Boston, Suffolk County, Massachusetts, where it is now and continuously has been engaged in the operation of a private nonprofit educational institution. Its annual gross volume of revenue for unrestricted use exceeds $1 million. Annually it purchases goods and materi- als valued in excess of $50,000 directly from points outside the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Respondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Massachusetts Federation of Teachers, American Federation of Teachers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective -bargain- ing purposes within the meaning of Section 9(b) of the Act: All full-time faculty members, including Cur- riculum Center Research Associate and librarians employed by the Employer at its two institutions in Boston, Massachusetts, but excluding part-time faculty members, department heads, registrar, Air Force Contract Research employees, athletic department employees, laboratory ' assistants, employees under the dean of students, coopera- tive students, office clerical employees, execu- tives, guards, and supervisors as defined in the Act. 2. The certification On September 26, 1973, a majority of the employ- ees of Respondent in said unit , in a secret ballot election conducted under the supervision of the Regional Director for Region 1, designated the Union as their representative for the purpose of collective bargaining with the Respondent. The Union was certified as the collective-bargaining representative of the employees in said unit on October 4, 1973, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about November 11 , 1973, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bargaining representative of all the employees in the above-described unit. Com- mencing on or about December 17, 1973, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to 2 See Pittsburgh Plate Glass Co. v. N.L R.B., 313 U.S. 146, 162 (1941); 2(5) of the Act as this was a conclusion of law to be decided by the Board. Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). As indicated above, the Board had decided in the underlying representation 3 In its answer to the complaint, the Respondent neither admitted nor can that the Union was a labor organization under Sec. 2(5) of the Act and denied the Union's status as a labor organization within the meaning of Sec. accordingly this matter also may not be relitigated herein. WENTWORTH recognize and bargain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since December 17, 1973, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certifica- tion as beginning on the date Respondent commenc- es to bargain in good faith with the Union as the recognized bargaining representative in the appropri- ate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lar- mar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Wentworth Institute and Wentworth College of Technology, Inc., is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Massachusetts Federation of Teachers, Ameri- INSTITUTE 347 can Federation of Teachers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time faculty members, including Cur- riculum Center Research Associate and librarians employed by the Employer at its two institutions in Boston, Massachusetts, but excluding part-time faculty members, department heads , registrar, Air Force Contract Research employees, athletic depart- ment employees, laboratory assistants, employees under the dean of students, cooperative students, office clerical employees, executives, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since October 4, 1973, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about December 17, 1973, and at all times thereafter, to bargain collectively with the above-named labor organization as - the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing , employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Wentworth Institute and Wentworth College of Technology, Inc., Boston, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Massachusetts Fed- eration of Teachers, American Federation of Teach- ers, AFL-CIO, as the exclusive bargaining represent- ative of its employees in the following appropriate unit: 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All full-,time faculty members, including Cur- riculum Center Research Associate and librarians employed by the Employer at its two institutions in Boston, Massachusetts, but excluding part-time facul members, department heads, registrar, Air Forcq Contract Research employees, athletic dep went employees, laboratory assistants, em loyees under the dean of students , coopera- te students, office clerical employees, execu- te es, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Post at its Boston, Massachusetts, institutions copies of the attached notice marked "Appendix." Al Copies of said notice, on forms provided by the Regional Director for Region 1 after being duly signed by Respondent's 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 Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 4 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages , hours, and other terms and conditions of employment with Massa- chusetts Federation of Teachers, American Fed- eration of Teachers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All full-time faculty members, including Curriculum Center Research Associate and librarians employed by the Employer at its two institutions in Boston, Massachusetts, but excluding part-time faculty members, department heads, registrar, Air Force Con- tract Research employees, athletic depart- ment employees, laboratory assistants, em- ployees under the dean of students, coopera- tive students, office clerical employees, executives, guards, and supervisors as de- fined in the Act. WENTWORTH INSTITUTE AND WENTWORTH COLLEGE OF TECHNOLOGY, INC. (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, Seventh Floor, Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300.