Niagara University

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Niagara University and Niagara University Lay Teachers Association . Case 3-CA-6544 November 17, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO Upon a charge filed on May 7, 1976, by Niagara University Lay Teachers Association, herein called the Union, and duly served on Niagara University, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 3, issued a complaint and notice of hearing on June 7, 1976, against Respon- dent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(5) and (1) and 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 pro- ceeding. With respect to the unfair labor practices, the com- plaint alleges in substance that (1) on December 29, 1975, following a Board election in Case 3-RC-6410, the Union was duly certified as the exclusive collec- tive-bargaining representative of Respondent's em- ployees in the unit found appropriate;' (2) commenc- ing on or about April 12, 1976, Respondent bargained directly and individually with the employ- ees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment by sending individual em- ployment contracts for the 1976-77 academic year to the employees in the appropriate unit; and (3) on or about May 5, 1976, and May 10, 1976, and at all times thereafter, Respondent has refused, and con- tinues 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 June 15, 1976, Respondent filed its an- swer to the complaint admitting in part, and denying in part, the allegations in the complaint. On July 12, 1976, counsel for the General Counsel filed directly with the Board a motion to transfer 'Official notice is taken of the record in the representation proceeding, Case 3-RC-6410, 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, as amended proceeding to Board, to strike Respondent's alleged first and second affirmative defenses, and for sum- mary judgment and issuance of Board's Decision and Order. Subsequently, on July 20, 1976, 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. Respondent thereafter filed a response to Notice To Show Cause entitled "Motion in Opposi- tion." 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 response to the Notice to Show Cause, Respondent in substance de- nies unit appropriateness, contends that its position thereon is supported by two recent Supreme Court decisions, Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich 2 and Roem- er v. Board of Public Works of Maryland,3 and seeks dismissal of the complaint based on its contention that unit appropriateness is at issue in its pending petition for unit clarification in Case 3-UC-104.4 In his motion, counsel for the General Counsel in sub- stance contends that summary judgment is appropri- ate because the Respondent has raised no litigable issue of fact and that resort to the Board for resolu- tion of postelection placement issues does not entitle an employer to refuse to bargain where, as here, the Union has demonstrated a clear majority in an other- wise appropriate unit. We agree. Review of the record, including that in the repre- sentation proceedings, Case 3-RC-6410, establishes that, at a hearing, Respondent sought to include reli- gious faculty in the bargaining unit. In his Decision and Direction of Election issued October 3, 1975, the Regional Director excluded religious faculty from the unit, following precedent in Seton Hills and Car- roll Manor," but allowed two nuns whose status was not clear to vote subject to challenge. Respondent filed a timely request for review contending, inter 2 96 S Ct 2372 (1976) 3 96 S Ct 2337 (1976) 4 A hearing was held in this case on March 12 and 15, 1976, and it is presently pending before the Board for decision in its answer , Respondent also relied on its motion for reconsideration and clarification of unit and consolidation filed on April 12, 1976, as grounds for dismissal of the instant complaint This motion was denied by the Board on July 22, 1976, as un- timely and lacking in merit 5 Seton Hill College, 201 NLRB 1026 (1973) 6 Carroll Manor Nursing Home, 202 NLRB 67 (1973) 226 NLRB No. 154 NIAGARA UNIVERSITY alia, that the Board's decision in Seton Hill was either incorrect or distinguishable, and that, under Seton Hill, religious faculty who were not members of the order which founded the Respondent university should be included in the unit. On November 20, 1975, the Board denied the request for review as rais- ing no substantial issues except as to the unit place- ment of two of the religious faculty, and amended the Decision and Direction of Election to permit them also to vote under challenge. The Union won the election held on December 17, 1975, with challenged ballots insufficient to affect the result, and, in the absence of objections to the elec- tion or tally, was certified by the Regional Director on December 29, 1975. On February 10, 1976, Re- spondent filed a petition in Case 3-UC-104 seeking clarification of the bargaining unit to include the four faculty members who had been permitted to vote subject to challenge. On April 12, 1976, Respon- dent filed a motion for reconsideration and clarifica- tion of unit and consolidation, seeking to consolidate the representation and clarification proceedings and, in substance, to relitigate the unit issues. On July 22, 1976, the Board denied Respondent's motion as un- timely and lacking in merit, finding that it raised only issues considered at earlier stages of the pro- ceedings and did not present any new matter justify- ing or warranting reconsideration of those issues at that time. 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 an 8(a)(5) violation is not entitled to relitigate 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 reject Respondent's contention raised in the instant proceeding that the exclusion of religious fa- culty is violative of the first amendment under recent Supreme Court decisions. We find Roemer and Serbi- an Eastern, supra, inapposite and we deem the in- quiry necessary to determine whether religious facul- ' See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941), Rules and Regulations of the Board, Secs 102 67(f) and 102 69(c) 919 ty have a sufficient community of interest to be in- cluded in the bargaining unit to be clearly distin- guishable from the inquiry into whether the removal and defrocking of a bishop was consistent with church law found violative of the first amendment in Serbian Eastern, supra. Further, we find no merit in the contention that the complaint be dismissed be- cause of the pendency of Case 3-UC-104. It is well established that a pending clarification petition is not a valid defense to the complaint since the unit place- ment issue raised therein involves neither the basic appropriateness of the certified unit, the Union's ma- jority therein, nor the ability of the parties to bargain in the certified unit. See Landis Tool Company, Divi- sion of Litton Industries, 203 NLRB 1025 (1973); Glen-Manor Home for the Jewish Aged, 196 NLRB 1166 (1972); The May Department Stores Company, 186 NLRB 86 (1970). We shall, accordingly, grant the Motion for Summary Judgment.8 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 nonprofit, 4-year university, incorporated under the education laws of the State of New York. During the past year, Respondent had gross revenues in excess of $1 million exclusive of any restrictions on revenues which, because of limitations placed by the grantor, would not be available for use as general operating expenses. Also during the same period of time, Respondent at its New York location received goods and materials valued in excess of $50,000, which goods and materials were shipped to Respon- dent in New York State directly from points 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 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 assertjuris- diction herein. ll. THE LABOR ORGANIZATION INVOLVED Niagara University Lay Teachers Association is a labor organization within the meaning of Section 2(5) of the Act. 8 In view of our determination herein, we find it unnecessary to pass on the General Counsel's motion to strike Respondent' s affirmative defenses 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 lay teaching faculty including de- partment chairmen employed by the Employer at its Niagara University, New York, location, excluding office clerical employees, religious fa- culty, part-time faculty, ROTC faculty, adminis- trators, all other professional employees, guards and supervisors as defined in the Act. 2. The certification On December 17, 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 3, 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 December 29, 1975, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. Respondent's Refusal To Bargain Commencing on or about April 12, 1976, Respon- dent bargained directly and individually with the em- ployees in the above-described unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment by sending individual employment contracts for the 1976-77 academic year to the unit employees in derogation of the status of the Union as the exclusive bargaining representative of the employees in the certified unit. Commencing on or about May 3, 1976, and at all times thereafter, the Union has requested the Respondent to bargain collectively with it as the exclusive collective-bar- gaining representative of all the employees in the above-described unit. Commencing on or about May 5, 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 ex- clusive representative for collective bargaining of all employees in said unit. Accordingly, we find that the Respondent has, on April 12, 1976, and May 5, 1976, and at all times thereafter, refused to bargain collectively with the Union as the exclusive representative of the employ- ees in the appropriate unit, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices 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. Niagara University is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Niagara University Lay Teachers Association is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time lay teaching faculty including de- partment chairmen employed by the Employer at its Niagara University, New York, location, excluding office clerical employees, religious faculty, part-time NIAGARA UNIVERSITY 921 faculty, ROTC faculty, administrators, all other pro- fessional employees, guards and supervisors as de- fined 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 December 29, 1975, the above-named la- bor 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 April 12, 1976, and May 5, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged 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, Ni- agara University, New York, 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 Niagara University Lay Teachers Association as the exclusive bargaining rep- resentative of its employees in the following appro- priate unit: All full-time lay teaching faculty including de- partment chairmen employed by the Employer at its Niagara University, New York, location, excluding office clerical employees, religious fa- culty, part-time faculty, ROTC faculty, adminis- trators, all other professional employees, guards and supervisors as defined in the Act. (b) Offering, soliciting, and inducing its employees to enter into individual contracts of employment with Respondent in derogation of the Niagara Lay Teachers Association's status as the exclusive bar- gaining representative of the employees in the afore- said appropriate unit. (c) 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 apprpriate 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 Niagara University, New York, lo- cation copies of the attached notice marked "Appen- dix." 9 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be post- ed 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 9In 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 Niag- ara Lay Teachers Association as the exclusive representative of the employees in the bargain- ing unit described below. WE WILL NOT offer, solicit, or induce our em- ployees to enter into individual contracts of em- ployment with Respondent in derogation of the Niagara Lay Teachers Association's status as the exclusive bargaining representative of the 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the bargaining unit described be- low. 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 lay teaching faculty including department chairmen employed by the Em- ployer at its Niagara University, New York, location, excluding office clerical employees, religious faculty, part-time faculty, ROTC faculty, administrators, all other professional employees, guards and supervisors as defined in the Act. NIAGARA UNIVERSITY