Gordon Technical High School

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gordon Technical High School Directed by the Congregation of the Resurrection and Gordon Technical High School Education Association, an Affiliate of the Illinois Education Association and the National Education Association. Case 13-CA- 16011 May 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Upon a charge filed on November 23, 1976, by Gordon Technical High School Education Associa- tion, an Affiliate of the Illinois Education Associa- tion and the National Education Association, herein called the Union, and duly served on Gordon Technical High School Directed by the Congregation of the Resurrection, herein called the Respondent, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 13, issued a complaint and notice of hearing on December 29, 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 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 September 20, 1976, following a Board election in Case 13-RC- 14012, 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 November 18, 1976, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bargaining represen- tative, although the Union has requested and is requesting it to do so. On January 6, 1977, Respon- dent filed its answer to the complaint admitting in part, and denying in part, the allegations in the complaint and requesting that the complaint be dismissed. On February 18, 1977, counsel for the General Counsel filed directly with the Board a Motion To Transfer Proceedings to the Board and Motion for Summary Judgment, with exhibits attached. Subse- quently, on February 25, 1977, the Board issued an i Official notice is taken of the record in the representation proceeding, Case 13-RC-14012, 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. 229 NLRB No. 102 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, "Response to Motion to Transfer Proceedings to the Board, Cross Motion for Summary Judgment and Motion to Amend its Answer," along with a supporting brief. Consequently, on March 15, 1977, counsel for the General Counsel filed a Response to Respondent's Cross Motion for Summary Judgment. 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 Motions for Summary Judgment Respondent in its answer admits the factual allegations contained in the complaint, but denies that the election held in the underlying representa- tion case was valid and thereby disputes the Acting Regional Director's unit determination and the validity of the certification of the Union as exclusive bargaining representative of the employees in that unit. In support of its Cross Motion for Summary Judgment, Respondent argues that the Board should decline to exercise jurisdiction over it on the ground that assertion of jurisdiction would unduly inhibit the exercise of religious freedom guaranteed to it under the first Amendment to the Constitution. As an additional ground for its motion, Respondent asserts that the unit in the underlying representation case is inappropriate because faculty members belonging to a religious order are excluded and because depart- ment chairmen are included. In her Motion for Summary Judgment and in her response to the Respondent's Cross Motion for Summary Judgment, counsel for the General Counsel contends that the issues raised by the Respondent were or could have been litigated in the underlying representation case and may not be relitigated herein. We agree with counsel for the General Counsel. Review of the record herein, including that in the representation proceeding, Case 13-RC-14012, es- tablishes that on March 29, 1976, the Union filed a petition under Section 9(c) of the Act seeking certification as the collective-bargaining representa- tive of certain employees of the Respondent. Follow- ing a hearing, the Acting Regional Director for 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. 708 GORDON TECHNICAL HIGH SCHOOL Region 13 issued, on May 14, 1976, a Decision and Direction of Election. At the above-mentioned hearing, Respondent advanced the same arguments made herein, specifically, that the Board should decline to assert jurisdiction over it because it is a religious institution and that to assert jurisdiction would be to derogate its first amendment right of religious freedom. The Respondent also fully litigat- ed the question of whether the petitioned-for unit was appropriate. The evidence adduced at the hearing indicated that, although the Respondent required all students to attend religious education courses, it was, in fact, a comprehensive high school with a broad curriculum of secular subjects. Conse- quently, the Acting Regional Director found that the Respondent was not a completely religious institu- tion and that its mode of operation was similar to other high schools over which the Board has asserted jurisdiction.2 He therefore found the Respondent to be an Employer within the meaning of the Act. In addition, after carefully reviewing the facts, the Acting Regional Director found that department chairmen are not supervisors within the meaning of the Act and thus directed that lay department chairmen be included in the unit. Thereafter, on May 25, 1976, the Respondent filed a request for review of the Acting Regional Direc- tor's Decision. On August 3, 1976, by teletype message, the Board denied Respondent's request for review on the grounds that it raised no substantial issues warranting review. It thus appears clear that Respondent is attempting to raise issues herein which have been raised and resolved in the prior represen- tation case. It is well settled that in the absence of newly discovered or previously unavailable evidence or special circumstances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding.3 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. We shall, accordingly, 2 See Cardinal Timothy Manning, Roman Catholic Archbishop of the Archdiocese of Los Angeles, 223 NLRB 1218 (1976); Roman Catholic Archdiocese of Baltimore, 216 NLRB 249 (1975); The Catholic Bishop of Chicago, a Corporation Sole, 220 NLRB 359 (1975). 3 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). deny the Respondent's Cross Motion for Summary Judgment and grant the General Counsel's Motion for Summary Judgment. 4 On the basis of the entire record, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a private Catholic high school for boys located in Chicago, Illinois, is operated by the Congregation of the Resurrection, an Illinois not-for- profit corporation. During the past year, a represen- tative period, the Congregation of the Resurrection had a gross annual income in excess of $1 million and purchased goods valued in excess of $50,000 from suppliers located within the State of Illinois, which goods and materials originated from points outside the State of Illinois. 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 Gordon Technical High School Education Associ- ation, an Affiliate of the Illinois Education Associa- tion and the National Education Association, is a labor organization within the meaning of Section 2(5) of the Act. 111. 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 lay teachers employed by the Respondent at Gordon Technical High School, located at 3633 North California Avenue, Chicago, Illinois, in- cluding department chairmen and part-time teachers teaching 20 percent or more of the full- time load; excluding faculty who are members of a religious order, part-time faculty teaching less 4 Having denied the Respondent's Cross Motion for Summary Judg- ment, we likewise deny, for the same reasons, the Respondent's motion to amend its answer to deny that it is an Employer within the meaning of the Act. 709 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than 20 percent of a full load, guards and supervisors as defined in the Act. 2. The certification On September 10, 1976, a majority of the employ- ees of Respondent in said unit, in a secret ballot election conducted under the supervision of the Acting Regional Director for Region 13 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 September 20, 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 October 1, 1976, 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 November 18, 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 November 18, 1976, 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(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, 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 Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett 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. Gordon Technical High School Directed by the Congregation of the Resurrection is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Gordon Technical High School Education Association, an Affiliate of the Illinois Education Association and the National Education Association is a labor organization within the meaning of Section 2(5) of the Act. 3. All lay teachers employed by the Respondent at Gordon Technical High School, located at 3633 North California Avenue, Chicago, Illinois, including department chairmen and part-time teachers teach- ing 20 percent or more of the full-time load; excluding faculty who are members of a religious order, part-time faculty teaching less than 20 percent of a full load, 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 September 20, 1976, 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 November 18, 1976, 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(a)(5) of the Act. 710 GORDON TECHNICAL HIGH SCHOOL 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)(l) 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 the Respondent, Gordon Technical High School Directed by the Congregation of the Resurrection, Chicago, Illinois, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Gordon Technical High School Education Association, an Affiliate of the Illinois Education Association and the National Education Association as the exclusive bargaining representative of its employees in the following appropriate unit: All lay teachers employed by the Respondent at Gordon Technical High School, located at 3633 North California Avenue, Chicago, Illinois, in- cluding department chairmen and part-time teachers teaching 20 percent or more of the full- time load; excluding faculty who are members of a religious order, part-time faculty teaching less than 20 percent of a full load, 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 Gordon Technical High School, Chicago, Illinois, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by Respondent's represen- tative, 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 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 Gor- don Technical High School Education Associa- tion, an Affiliate of the Illinois Education Association and the National Education Associa- tion, as the exclusive, bargaining 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 above- named 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 bar- gaining unit is: All lay teachers employed by the Respon- dent at Gordon Technical High School, located at 3633 North California Avenue, Chicago, Illinois, including department chairmen and part-time teachers teaching 20 percent or more of the full-time load; 711 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding faculty who are members of a religious order, part-time faculty teaching less than 20 percent of a full load, guards and supervisors as defined in the Act. GORDON TECHNICAL HIGH SCHOOL DIRECTED BY THE CONGREGATION OF THE RESURRECTION 712