Duke University

182 311 NLRB No. 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Duke University, 306 NLRB 555. Duke University and Amalgamated Transit Union, Local 1328. Case 11–CA–15030 May 26, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY, OVIATT, AND RAUDABAUGH Based on a charge filed by the Union on June 10, 1992, the General Counsel of the National Labor Rela- tions Board issued a complaint and notice of hearing on June 24, 1992, alleging that the Respondent vio- lated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of certain of its employees. The Respondent filed a timely answer ad- mitting in part and denying in part the allegations in the complaint. On December 2, 1992, the General Counsel, the Union, and the Respondent filed with the Board a stip- ulation of facts, with attached exhibits, and moved to transfer this proceeding to the Board. The parties agreed that the stipulation and exhibits, together with the charge, complaint and notice of hearing, and an- swer and amended answer, constitute the entire record in this case. They waived their right to a hearing and decision by an administrative law judge. On January 28, 1993, the Board approved the stipulation and trans- ferred the proceeding to the Board for issuance of a decision and order. Thereafter, the General Counsel and the Respondent filed briefs. On the entire record and briefs, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent is a private nonprofit educational institution with its main campus located at Durham, North Carolina. The Duke University Medical Center, an acute care hospital facility, is included in the Re- spondent’s operations. During the 12-month period preceding execution of the stipulation, a representative period, the Respondent, in the course and conduct of its operations, derived gross revenue of at least $1 mil- lion, of which $50,000 was received from points out- side the State of North Carolina. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Facts Following the election held August 29, 1991, the Regional Director for Region 11, pursuant to the Board’s Decision on Review and Order of February 28, 1992,1 certified the Union on March 30, 1992, as the exclusive bargaining representative of the employ- ees in the following appropriate unit: All full-time bus drivers employed by the Em- ployer at its campus at Durham, North Carolina, excluding supervisors as defined in the Act. By letter dated May 12, 1992, the Union requested that the Respondent recognize and bargain collectively with the Union as the exclusive representative of all employees in the unit described above. By letter dated May 22, 1992, the Respondent refused to recognize or engage in collective bargaining with the Union. III. CONTENTIONS OF THE PARTIES The Respondent contends that a unit of full-time bus drivers serving its entire university, including its on- campus acute care hospital, is not an appropriate unit. The Respondent claims that the Board erred in affirm- ing the Regional Director’s unit determination in the earlier representation case. The General Counsel submits that the Board’s unit determination in the earlier representation case pre- cludes the Respondent from relitigating the unit issue in this unfair labor practice proceeding. IV. DISCUSSION All representation issues raised by the Respondent were or could have been litigated in the prior represen- tation proceeding. The Respondent does not allege newly discovered and previously unavailable evidence or special circumstances. The Respondent is attempting to relitigate issues that were or could have been liti- gated in the prior representation case. It is well settled that in the absence of newly discovered and previously unavailable evidence or special circumstances, a re- spondent in an unfair labor practice proceeding alleg- ing a violation of Section 8(a)(5) is not entitled to re- litigate issues that were or could have been litigated in a prior representation proceeding. Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941); Heuer International Trucks, 279 NLRB 127 (1986). Accord- ingly, we conclude that the Respondent’s refusal to bargain violates Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following constitutes a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: 183 DUKE UNIVERSITY 2 If 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.’’ All full-time bus drivers employed by the Em- ployer at its campus at Durham, North Carolina, excluding supervisors as defined in the Act. 4. At all times since March 30, 1992, the Union has been the exclusive certified collective-bargaining rep- resentative of the employees in the appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing, since May 22, 1992, to recognize and engage in collective bargaining with the Union as the exclusive representative of the employees in the above described appropriate unit, the Respondent has engaged and is engaging in unfair labor practices with- in the meaning of Section 8(a)(5) and (1) of the Act. 6. The Respondent’s unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Sec- tion 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the un- derstanding in a signed agreement. To ensure that the employees are accorded the serv- ices of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar- Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Duke University, Durham, North Caro- lina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate bargaining unit: All full-time bus drivers employed by the Em- ployer at its campus at Durham, North Carolina, excluding 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 by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and bargain in good faith with the Union as the exclusive representative of its employees in the above-described unit with respect to wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. (b) Post at its Durham, North Carolina facilities cop- ies of the attached notice mark ‘‘Appendix.’’2 Copies of the notice, on forms provided by the Regional Di- rector for Region 11, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain with Amalgamated Transit Union, Local 1328, as the exclu- sive collective-bargaining representative of our em- ployees in the following appropriate bargaining unit: All full-time bus drivers employed at our campus at Durham, North Carolina, excluding supervisors as defined in the Act. WE WILL recognize and bargain with the Union as the exclusive representative of our employees in the bargaining unit with respect to wages, hours, and other terms and conditions of employment and, if an under- standing is reached, we will embody the understanding in a signed agreement. DUKE UNIVERSITY