Mercy College

MERCY COLLEGE 81 Mercy College and Mercy College Faculty Council. Case 2-CA-13565 July 11, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO Upon a charge filed on December 24, 1974, by Mercy College Faculty Council, herein called the Union, and duly served on Mercy College, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued a complaint on Febru- ary 6, 1975, against Respondent, alleging that Re- spondent 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 hear- ing before an Administrative Law Judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that on August 30, 1974, following a Board election in Case 2-RC-16181 the Union was duly certified as the exclusive collective- bargaining representative of Respondent's employees in the unit found appropriate;' and that, commenc- ing on or about September 25, 1974, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On February 18 and March 19, 1975, Respondent filed its answer and amended answer to the com- plaint admitting in part, and denying in part, the alle- gations in the complaint. Affirmatively, Respondent asserts that: (1) the Regional Director erred in allow- ing an employee to vote because he was a supervisor; (2) certain alleged misrepresentations by the Union destroyed the laboratory conditions for the election; (3) the denial of an evidentiary hearing on these is- sues violated due process; and (4) the Regional Di- rector allowed the Union to call itself by an incom- plete and misleading name throughout the campaign and election. Respondent also asserts that the Board violated the quorum requirements of the Act in its 'Official notice is taken of the record in the representation proceeding. Case 2-RC-16181 , as the term "record" is defined in Secs. 102.68 and 102.69(g) of the Board's Rules and Regulations , Series 8, as amended. See LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4, 1968); Golden Age Beverage Co, 167 NLRB 151 (1967), enfd. 415 F.2d 26 (C.A. 5, 1969); Intertype Co. v. Penello, 269 F Supp. 573 (D.C.Va., 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968), Sec. 9(d) of the NLRA. determinations in the representation case. On April 9, 1975, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. He argues, in effect, that all issues raised by Respondent's answer were raised and litigated in the underlying representation case, and under well- settled principles Respondent is not entitled to reliti- gate them herein. Subsequently, on April 22, 1975, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judg- ment should not be granted. Respondent thereafter filed a response to Notice To Show Cause, entitled "Statement in Opposition to Petition for Summary Judgment," in which it essentially reasserts the mat- ters raised by its answer to the complaint, with addi- tional argument thereon. Further, Respondent as- serts that the Board should provide it with certain documents to enable it to prepare its defense. The Union also filed a statement in reply to the Respondent's statement, basically supporting the po- sition of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority 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 Review of the record in the representation case in- dicates that the arguments propounded by Respon- dent concerning the rulings of the Regional Director and the Board, both in its answer to the complaint and response to the Notice To Show Cause, were raised and fully litigated in the several stages of that proceeding.2 With respect to the contention that due process necessitates a hearing on these issues, we note that Respondent argued that a hearing was re- quired on these grounds in its request for review of the Regional Director's Supplemental Decision in which he resolved the issues Respondent seeks to liti- gate in this proceeding. The Board, in denying review of all but one of Respondent's objections, did not order a hearing. Moreover, it is established that par- ties do not have an absolute right to a hearing. It is 2 On August 2, 1973, and March 12, 1975, the Board denied Respondent's request for review of the Acting Regional Director's Decision and Direction of Election as it raised no substantial issues warranting review . Following the March 7, 1974, issuance of the Regional Director's Supplemental Deci- sion in which he overruled both parties' objections and sustained challenges to two ballots and ordered one opened , Respondent again requested review. On April 30, 1974, the Board granted review on one objection and denied as to the remainder. On August 16, 1974, the Board issued a Decision on Review and Order (212 NLRB 925) finding one ballot void and ordering the Regional Director to open and count the remaining challenged ballot 219 NLRB No. 5 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only when the moving party presents a prima facie showing of such "substantial and material issues" which would warrant setting aside the election that he is entitled to an evidentiary hearing.' It is clear that, absent arbitrary action, this qualified right to a hearing satisfies all statutory and constitutional re- quirements.4 As noted above, Respondent also asserts that the Board's several rulings in the representation proceed- ing were in violation of the quorum requirement of the Act. Respondent raised this issue by its January 13 and February 11, 1975, letters in conjunction with its requests for certain Board documents pursuant to the Freedom of Information Act. On those occa- sions, Respondent was advised that there had been no violation of the Act's quorum requirements with regard to the Board's denial of review of the Region- al Director's Supplemental Decision on all but one of its objections, or the denial of its request for recon- sideration of that decision. It was subsequently ad- vised, however, that with regard to the Board's origi- nal denial of review of the Acting Regional Director's Decision and Direction of Election, there may have been a procedural infirmity and that a duly constituted panel of the Board had again considered its request for review and had again determined that it be denied. In these circumstances, it appears that Respondent is attempting to raise issues which were raised and litigated in various stages of the underlying represen- tation proceeding, or have been previously consid- ered and resolved by the Board. It is well settled that in the absence of newly dis- covered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to reliti- gate issues which were or could have been litigated in a prior representation proceeding.' All issues raised by the respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and the Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the de- cision made in the representation proceeding. Respondent also renews its request for certain Board documents pertaining to the Board's several rulings in the representation case. These documents were previously requested by Respondent in the let- ters mentioned above, and by an additional letter dated March 14, 1975. By letters dated February 3 and March 14, 1975, the Board's Executive Secretary granted in part and denied in part these requests, basing the denial on the ground that the documents sought by Respondent related to the deliberative pro- cesses of the Board in its adjudication of the matter and thus were not subject to disclosure. Thereafter, by letter dated April 4, 1975, Respondent appealed the Executive Secretary's decision to the Chairman of the Board, and again requested the documents. By letter dated May 2, 1975, Chairman Murphy provid- ed certain of the requested documents and denied Respondent's request as to the remainder on the same grounds given by the Executive Secretary. Re- spondent has thus exhausted its avenues of appeal in seeking disclosure of these documents within the Board. While Respondent has the right to judicial review of the Board's refusal to grant disclosure of certain documents,6 Respondent cannot raise this is- sue here as a defense in this unfair labor practice proceeding. Accordingly, Respondent having raised nothing properly litigable in this proceeding, we shall grant the General Counsel's Motion for Summary Judg- ment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a private nonprofit college located in Dobbs Ferry, New York. During the past year, which period is representative of its annual operations generally, Respondent derived gross revenues from all sources in excess of $1 million of which in excess of $50,000 was derived from sources located outside the State of New York. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material here- in, 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 juris- diction herein. II. THE LABOR ORGANIZATION INVOLVED 3 N.L.R.B. v. Modine Manufacturing Co, 500 F.2d 914 (C.A. 8, 1974). 4Amalgamated Clothing Workers of America [Winfield Manufacturing Company, Inc) v. N.L.R.B., 424 F.2d 818, 828 (C.A.D.C. 1970). Mercy College Faculty Council is a labor organi- zation within the meaning of Section 2(5) of the Act. See Pittsburgh Plate Glass Co. v. NL.R.B., 313 U.S. 146, 162 (1941): 6 Sec 102.117(c)(2)(u) of the Board's Rules and Regulations, Series 8, as Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c). amended February 19, 1975, 5 U.S C §552(4)(b) MERCY COLLEGE 83 III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit tices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The following employees of the Respondent con- stitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time members of the faculty employed by the Employer including department chairmen, assistant library director and reader service librarians, but excluding ad- ministrative personnel, the president, assistants to the president, deans and assistant deans, di- rectors and assistant directors of academic advi- sors, director of the library, all other employees, guards, watchmen and supervisors as defined in the Act. 2. The certification On November 7 and 8, 1973, a majority of the employees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Regional Director for Region 2, designated the Union as their representative for the purpose of col- lective bargaining with the Respondent. The Union was certified as the collective-bargaining representa- tive of the employees in said unit on August 30, 1974, and the Union continues to be such exclusive repre- sentative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about September 5, 1974, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about September 25, 1974, and continuing at all times thereafter to date, the Respondent has re- fused, and continues to refuse, to recognize and bar- gain with the Union as the exclusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, since September 25, 1974, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor prac- 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, inti- mate, 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 commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing 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 ap- propriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appro- priate unit will be accorded the services of their se- lected 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 Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Bur- nett Construction Company, 149 NLRB 1419, 1421 (1964), 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. Mercy College is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Mercy College Faculty Council is a labor or- ganization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time members of the faculty employed by the Employer including de- partment chairmen, assistant library director and reader service librarians, but excluding administra- tive personnel, the president, assistants to the presi- dent, deans and assistant deans, directors and assis- tant directors of academic advisors, director of the 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD library, all other employees, guards, watchmen 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 August 30, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the afore- said appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 25, 1974, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees 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 mean- ing 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. 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 Dobbs Ferry, New York, location copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Re- gional Director for Region 2 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 thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 7In 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 " ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that Respondent Mercy College, Dobbs Ferry, New York, 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 con- ditions of employment with Mercy College Faculty Council as the exclusive bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time members of the faculty employed by the Employer including department chairmen, assistant library director and reader service librarians, but excluding ad- ministrative personnel, the president, assistants to the president, deans and assistant deans, di- rectors and assistant directors of academic advi- sors, director of the library, all other employees, guards, watchmen 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. 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 Mer- cy College Faculty Council as the exclusive rep- resentative 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 represen- tative of all employees in the bargaining unit de- scribed below, with respect to rates of pay, wag- es, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed MERCY COLLEGE agreement. The bargaining unit is: All full-time and regular part-time members of the faculty employed by the Employer in- cluding department chairmen, assistant li- brary director and reader service librarians, but excluding administrative personnel, the 85 president, assistants to the president, deans and assistant deans, directors and assistant di- rectors of academic advisors, director of the library, all other employees, guards, watch- men and supervisors as defined in the Act. MERCY COLLEGE