Drew University

218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drew University and Local Union 1310, Maintenance & Custodial Division, International Brotherhood of Painters & Allied Trades, AFL-CIO. Case 22-CA- 6993 October 1, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on May 25, 1976, by Local Union 1310, Maintenance & Custodial Division, In- ternational Brotherhood of Painters & Allied Trades, AFL-CIO, herein called the Union, and duly served on Drew University, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, is- sued a complaint and notice of hearing on June 11, 1976, against Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning 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 be- fore 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 April 10, 1976, following a Board election in Case 22-RC-6539, the Union was duly certified as the collective-bargaining representative of Respondent's employees in the unit found appropriate;' and that, commencing on or about May 19, 1976, and at all times thereafter, Re- spondent has refused, and continues to date to re- fuse, to bargain collectively with the Union as the exclusive bargaining representative, although the Union has requested and is requesting it to do so. On June 21, 1976, Respondent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 6, 1976, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment, with memorandum in support thereof with attached exhibits. On July 8, 1976, the Respon- dent filed with the Board a Memorandum in Opposi- tion to Motion for Summary Judgment, with at- tached exhibits. Subsequently, on July 14, 1976, the 1 Official notice is taken of the record in the representation proceeding, Case 22-RC-6539, 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 Electosystems, 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 (CA. 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, as amended. Board issued an order transferring the proceeding of the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to Notice To Show Cause submitting that its earlier Memorandum in Opposition to Motion for Summary Judgment should be considered in lieu of any additional writing. 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 In its answer to the complaint and Memorandum in Opposition to the Motion for Summary Judgment, the Respondent contends that the Union was im- properly certified because of the objections to the election and because of the failure to hold a hearing on the material issues of fact raised by the objections. On the other hand, the General Counsel argues that all material issues have been previously decided and that there are no litigable issues of fact requiring a hearing. We agree with the General Counsel. Review of the record herein, including that in the representation proceeding, Case 22-RC-6539, estab- lishes that, pursuant to a Stipulation for Certification Upon Consent Election, an election was conducted on November 14, 1975, which the Union won. The Respondent filed timely objections to conduct affect- ing the results of the election alleging, in substance, that a group leader, an eligible voter and not a super- visor within the meaning of the Act, made material misstatements to four voters allegedly containing threats of job loss and more onerous working condi- tions. After investigation, the Acting Regional Direc- tor, on December 30, 1975, issued his Report on Ob- jections in which he found that the objections, even assuming the Respondent's version thereof, did not raise substantial or material issues of fact and, ac- cordingly, he recommended that the objections be overruled and the Union certified. The Respondent filed timely exceptions to the report reiterating its objections and requesting the Board to remand the case for a full hearing on the substantial and material facts raised by the objections. On April 30, 1976, the Board issued a Decision and Certification of Repre- sentative in which it certified the Union after adopt- ing the Acting Regional Director's findings and rec- ommendations and specifically agreeing with him that the alleged objectionable conduct did not consti- tute election interference because the statements 226 NLRB No. 37 DREW UNIVERSITY were in no way related to the upcoming election or its outcome and found it unnecessary to pass upon the other grounds for overruling the objections. The Board thereby found in effect not only that the Re- spondent's objections did not warrant overturning the election but also that the objections did not raise substantial or material issues warranting a hearing .2 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 pro- ceeding 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. We therefore find that the Respondent has not raised any issue which is, properly litigable in this unfair labor practice proceeding. 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 The Respondent, a New Jersey corporation, is a private nonprofit educational institution with princi- pal office and educational facilities in Madison, New Jersey, where it is engaged in the operation of a pri- vate educational institution. During the preceding fiscal year, a representative period, the Respondent's gross revenues from all sources exceeded $1 million and during that time it caused to be purchased, transferred, and delivered to its Madison facility goods and materials valued in excess of $50,000, of which in excess of $50,000 were transported to said facility in interstate commerce directly from States of the United States other than the State of New Jersey. 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. 2American Can Company, 224 NLRB 553 (1976), and Locust Industries, Inc., 221 NLRB 604 (1976). 3 See Pittsburgh Plate Glass Co v. NLRB, 313 U.S. 146, 162 (1941), Rules and Regulations of the Board, Secs. 102.67(f) and 102 69(c) II. THE LABOR ORGANIZATION INVOLVED 219 Local Union 1310, Maintenance & Custodial Divi- sion, International Brotherhood of Painters & Allied Trades, 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 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 mainte- nance and custodial employees employed at Re- spondent's 36 Madison Avenue, Madison, New Jersey, campus including mechanics, mechanic helpers, custodians, truckdrivers, groundskeep- ers, maids and storekeepers, but excluding all office clerical employees, professional employ- ees, part-time and seasonal student employees, guards and all supervisors as defined in the Act. 2. The certification On November 14, 1975, a majority of the employ- ees of Respondent in said unit, in a secret ballot elec- tion conducted under the supervision of the Regional Director for Region 22, designated the Union as their representative for the purpose of collective bargain- ing with the Respondent. The Union was certified as the collective-bargaining representative of the em- ployees in said unit on April 30, 1976, 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 May 13, 1976, and at all times thereafter, the Union has requested the Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the employees in the above-described unit. Commencing on or about May 19, 1976, and continuing at all times thereafter to date, the Respondent has refused, and continues to refuse, to 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 May 19, 1976, and at all times thereafter, re- fused to bargain collectively with the Union as the 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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- 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 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. Drew University is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 1310, Maintenance & Custodial Division, International Brotherhood of Painters & Allied Trades, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time maintenance and custodial employees employed at Respondent's 36 Madison Avenue, Madison, New Jersey, campus including mechanics, mechanic helpers, custodians, truckdrivers, groundskeepers, maids and storekeep- ers, but excluding all office clerical employees, pro- fessional employees, part-time and seasonal student employees, guards and all supervisors as defined in the Act, constitute a unit appropriate for the purpos- es of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. Since April 30, 1976, the above-named labor or- ganization has been and now is the certified and ex- clusive 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 May 19, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bar- gaining representative of all the employees of Re- spondent in the appropriate unit, Respondent has en- gaged in and is engaging in unfair labor practices 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Drew University, Madison, New Jersey, 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 Local Union 1310, Maintenance & Custodial - Division, International Brotherhood of Painters & Allied Trades, AFL-CIO, as the exclusive bargaining representative of its em- ployees in the following appropriate unit: All full-time and regular part-time mainte- nance and custodial employees employed at Re- spondent's 36 Madison Avenue, Madison, New Jersey, campus including mechanics, mechanic helpers, custodians, truckdrivers, groundskeep- DREW UNIVERSITY ers, maids and storekeepers, but excluding all office clerical -employees, professional employ- ees, part-time and seasonal student employees, guards and all 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 Madison, New Jersey, facility copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able 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 22, 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 221 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 Local Union 1310, Maintenance & Custodial Division, International Brotherhood of Painters & Allied Trades, AFL-CIO, as the exclusive representa- tive of the employees in the bargaining unit de- scribed 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 agreement. The bargaining unit is: All full-time and regular part-time mainte- nance and custodial employees employed at Respondent's 36 Madison Avenue, Madison, New Jersey, campus including mechanics, mechanic helpers, custodians, truckdrivers, groundskeepers, maids and storekeepers, but excluding all office clerical employees, profes- sional employees, part-time and seasonal stu- dent employees, guards and all, supervisors as defined in the Act., DREW UNIVERSITY