Trustees of Boston University

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trustees of Boston University and District 65, Dis- tributive Workers of America. Case I -CA- 15450 May 10, 1979 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND TRUESI)AI.E Upon a charge filed on January 9, 1979, by District 65, Distributive Workers of America, herein called the Union, and duly served on Trustees of Boston University, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 1, issued a complaint on February 2, 1979, against Respondent, alleging that Respondent had engaged in and was en- gaging 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 before an administrative law judge were duly served on the parties to this proceed- ing. With respect to the unfair labor practices, the com- plaint alleges in substance that on December 13, 1978, following a Board election in Case I RC 15201, the Union was duly certified as the exclusive collective-bargaining representative of Respondent's employees in the unit found appropriate' and that, commencing on or about January 4, 1979, and at all times thereafter, Respondent has refused, and contin- ues to date to refuse, to bargain collectively with the Union as the exclusive bargaining representative, al- though the Union has requested and is requesting it to do so. On February 14, 1979, Respondent filed its answer to the complaint, admitting in part, and deny- ing in part, the allegations in the complaint. On February 26, 1979, counsel for the General Counsel filed directly with the Board a Motion for Summary Judgment. Subsequently, on March 8, 1979, the Board issued an order transferring the pro- ceeding to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent there- after filed a response to the Notice To Show Cause, and the General Counsel filed an answering brief. 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- t Official notice is taken of the record in the representation proceeding, Case I-RC-15201, 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 Electrosysenms, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967): Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. 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 opposition to the Motion for Summary Judgment, Respondent ad- mits that the Union has requested and that it has refused to bargain but contends that the certification of the Union is invalid because the unit certified is inappropriate for the purposes of collective bargain- ing and because of the objections to the election and the failure to hold a hearing on said objections. Re- spondent further contends that the Board's denial by telegram of its request for review of the Regional Di- rector's Decision on Objections and Challenged Bal- lots, without having before it the entire record in the case, constitutes an abuse of discretion and a denial of due process. The General Counsel argues that all material issues have been previously considered 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 I RC-15201, estab- lishes that, upon a petition duly filed under Section 9(c) of the Act, a hearing was held before Hearing Officer Robert C. Rosemere. Following the hearing, the case was transferred to the Board in Washington, D.C., for decision pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions, Series 8, as amended. Thereafter, the Board is- sued a Decision and Direction of Election wherein it found that the petitioned-for unit of all full-time and regular part-time clerical, technical, and service em- ployees (not covered by other union contracts) em- ployed at the Charles River campus, excluding guards, watchmen, supervisors, and professional em- ployees as defined in the Act and temporary, sea- sonal, and casual employees, constitutes a separate appropriate unit for the purposes of collective bar- gaining and directed that an election by secret ballot be conducted among the employees in that unit. On May 24, 1978, a secret-ballot election was con- ducted among the employees in the aforementioned unit. The tally was 418 for and 360 against the Union; there were 85 challenged ballots, a sufficient number to affect the results of the election. Respon- dent filed timely objections to conduct affecting the results of the election, alleging, in substance, that the Union campaigned in the polling areas, intimidated employees by such acts as interrogating them outside the polling areas, and made material misrepresenta- tions of fact. Respondent further objected to the par- ticipation of supervisors in the organizational cam- paign and to the counting of a ballot which had the 242 NLRB No. 25 110 TRUSTEES OF BOSTON UNIVERSITY word "hell" written on it. After investigation, the Re- gional Director, on September 8, 1978, issued a Deci- sion on Objections and Challenged Ballots in which he recommended that Respondent's objections be overruled in their entirety and sustained 19 and over- ruled 33 of the 85 challenges. He further directed that if after a revised tally of ballots issued a majority of the valid votes were cast for the Petitioner, a certifica- tion of representative would issue, whereas if the re- maining 33 challenged ballots became determinative of the results of the election, a hearing would be held in order to resolve them. On October 10, 1978, Re- spondent filed a timely request for review of the Re- gional Director's Decision on Objections and Chal- lenged Ballots, reiterating certain of its objections and requesting that such objections be sustained or, in the alternative, that a hearing on those objections be di- rected. By telegraphic order of December 4, 1978, the Board denied Respondent's request for review, thereby finding in effect not only that Respondent's objections raised therein did not warrant overturning the election but also that those objections did not raise substantial or material issues warranting a hear- ing. On December 8, 1978, the 33 overruled chal- lenged ballots were opened and counted, and a re- vised tally of ballots issued, showing that a majority of the employees of Respondent in the appropriate unit selected the Union as their representative for purposes of collective bargaining.2 On December 13, 1978, the Regional Director issued a Certification of Representative. 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.3 All issues raised by Respondent in this proceeding were or could have been litigated in the prior repre- sentation proceeding, and Respondent does not offer to adduce at a hearing any newly discovered or previ- ously unavailable evidence, nor does it allege that any special circumstances exist herein which would re- quire the Board to reexamine the decision made in the representation proceeding.4 We therefore find that 2The tally was 427 for and 384 against the Union; the remaining chal- lenged ballots were insufficient in number to affect the results. t See Pittsburgh Plate Glass Co., v. NL.R.B., 313 U.S. 146, 162 (1941): Rules and Regulations of the Board. Secs 102.67(f) and 102.691c). ' Respondent points to the Sixth Circuit's decision in Prestolie Wire Divi- sion v. N.L.R.B.. 592 F.2d 302 (6th Cir. 1979). as support for its contention that the Board's denial of its request for review, without having the entire investigative record before it, constitutes an abuse of discretion and a denial of due process. We disagree with the Sixth Circuit's holding and respectfully decline to follow it. Moreover, we note that the case has no application here. Sec. 3(b) of the Act authorizes the Board to delegate to its Regional Direc- tors its powers under Sec. 9 and places review of any such delegated action by a Regional Director within the Board's discretion. Where, as here. it Respondent has not raised any issue which is prop- erly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summar Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACIS I. THE BUSINESS OF RESPONDENT Respondent, a Massachusetts corporation, is a pri- vate nonprofit educational institution with its princi- pal office and place of business at 147 Bay State Road, in the city of Boston, Commonwealth of Mas- sachusetts, where it is engaged in the operation of a private nonprofit educational institution. Respondent, in the course and conduct of its business, annually derives gross revenues, for use with no restrictions, in excess of $1 million and annually purchases, trans- fers, and delivers to its Boston facility goods and ma- terials valued in excess of $50,000 which were trans- ported to its Boston facility directly from States other than the Commonwealth of Massachusetts. We find, on the basis of the foregoing, that Respon- dent 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 ABOR ORGANIZATION INVOLVED District 65, Distributive Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR .ABOR PRACTI(ES A. The Representation Proceeding 1. The unit The following employees of Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time and regular part-time clerical, tech- nical and service employees (not covered by other union contracts) employed at the Charles River Campus, but excluding guards, watchmen, appears from the Regional Director's decision and the brief in support of the request for review that no substantial and matenal issues exist. we find that it is a proper exercise of our discretion to deny the request for review on that basis. This finding is supported by the Act's policy of expeditiously resolving questions concerning representation. IIIl DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervisors and professional employees as de- fined in the Act, and temporary, seasonal and casual employees. 2. The certification On May 24, 1978, a majority of the employees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Di- rector for Region 1, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the col- lective-bargaining representative of the employees in said unit on December 13, 1978, and the Union con- tinues 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 December 20, 1978, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the exclu- sive collective-bargaining representative of all the em- ployees in the above-described unit. Commencing on or about January 4, 1979, 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 January 4, 1979, and at all times thereafter, re- fused 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- 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 operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce 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 commences to bargain in good faith with the Union as the recog- nized bargaining representative in the appropriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/bla Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817: Burnett Con- struction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Trustees of Boston University is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District 65, Distributive Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All full-time and regular part-time clerical, tech- nical, and service employees (not covered by other union contracts) employed at the Charles River Cam- pus, but excluding guards, watchmen, supervisors, and professional employees as defined in the Act and temporary, seasonal, and casual employees, constitute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 4. Since December 13, 1978, 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 January 4, 1979, 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 them in Sec- tion 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 112 TRUSTEES OF BOSTON UNIVERSITY 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 Rela- tions Board hereby orders that Respondent, Trustees of Boston University, Boston, Massachusetts, its offi- cers, 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 District 65, Distributive Workers of America, as the exclusive bargaining rep- resentative of its employees in the following appropri- ate unit: All full-time and regular part-time clerical, tech- nical and service employees (not covered by other union contracts) employed at the Charles River Campus, but excluding guards, watchmen, supervisors, and professional employees as de- fined in the Act, and temporary, seasonal and casual employees. (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 understand- ing is reached, embody such understanding in a signed agreement. (b) Post at its Boston, Massachusetts, facility cop- ies of the attached notice marked "Appendix."5 Cop- ies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Re- 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." spondent's representative, shall be posted by Respon- dent immediately upon receipt thereof, and be main- tained 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 I, in writing, within 20 days from the date of this Order, what steps have been 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 WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Dis- trict 65, Distributive Workers of America. 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 Union, as the exclusive representative 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 agreement. The bargaining unit is: All full-time and regular part-time clerical, tech- nical and service employees (not covered by other union contracts) employed at the Charles River Campus, but excluding guards, watchmen, supervisors and professional employees as de- fined in the Act, and temporary, seasonal and casual employees. TRUSTEES OF BOSTON UNIVERSITY 113