Quinnipinac College

330 NLRB No. 63 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Quinnipiac College and Security Department Mem- bership. Case 34–CA–8988 January 7, 2000 DECISION AND ORDER BY MEMBERS FOX, LIEBMAN, AND HURTGEN Pursuant to a charge filed on August 24, 1999, the General Counsel of the National Labor Relations Board issued a complaint on September 9, 1999, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain and furnish information following the Union’s certification in Case 34-RC-1717. (Official no- tice is taken of the “record” in the representation pro- ceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the com- plaint. On September 30, 1999, the General Counsel filed a Motion for Summary Judgment. On October 5, 1999, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain and to furnish information, but attacks the validity of the certification on the basis of its contention that the Board erred in the representation proceeding in finding that the shift supervisors are not supervisors within the meaning of the Act. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding.1 We 1 The Respondent contends that exceptional circumstances require reopening the record and reconsidering the finding that the “shift su- pervisors” are not supervisors within the meaning of Sec. 2(11) of the Act, in light of the Respondent’s security department policies and pro- cedures manual. In particular, the Respondent argues that because the manual was not formally admitted into the record, the parties had no reason to believe that the Regional Director would rely on it in his Decision and Direction of Election. (The Respondent notes that it had successfully opposed the Petitioner’s motion to have the complete manual admitted into the record prior to the Regional Director’s deci- sion.) We find no merit to the Respondent’s “exceptional circum- stances” contention. In its Request for Review of the Regional Direc- tor’s Decision and Direction of Election, the Respondent did not argue therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.2 We also find that there are no factual issues warranting a hearing with respect to the Union’s requests to bargain and for information. The Respondent’s answer admits that by letter dated July 26, 1999, the Union requested that the Respondent bargain and furnish it with the fol- lowing information: 1. Please provide a list of all bargaining unit employ- ees with the following information: Name Address Telephone Date of Birth Date of Hire Job title and/or classification Rate of Pay Sex Marital status Social Security number 2. Please provide a list of job titles and job classifica- tions and the number of employees in each job title or classification. 3. Please provide a list of employees, by job classifica- tion or job title, on each shift. 4. Please provide the following information with re- spect to employee benefits in which bargaining unit employees participate or are eligible to participate: a. Exact type and title of each and every medi- cal, health, disability, life, dental, vision and pre- scription benefit plan; b. Copies of all summary plan descriptions for each and every employee benefit plan; c. Copies of each plan document or insurance policy for each and every employee benefit plan; d. Breakdown of how each employee is classi- fied for the purpose of employee benefit cover- age, i.e., single, couple, family, etc.; that the Regional Director should not have referred to the manual at all, nor did the Respondent seek to have the record reopened to receive it in evidence. Because the Respondent had the opportunity then to seek to have the manual admitted and failed to do so, it foreclosed from mak- ing that contention at this stage of the proceeding. See Sec. 102.67(j) of the Board’s Rules. 2 Member Hurtgen dissented from his colleagues in the underlying representation proceeding with respect to the supervisory status of the Employer’s shift supervisors, assistant shift supervisors, and acting shift supervisors. However, he agrees that the Respondent has not raised any new matters that are properly litigable in this unfair labor practice case. See Pittsburgh Plate Glass v. NLRB, supra. In light of this, and for institutional reasons, he agrees with the decision to grant the General Counsel’s Motion for Summary Judgment. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 5. Please provide the following information with re- spect to employee pension and retirement benefits and plans in which bargaining unit employees currently participate or are eligible to participate: a. Copies of all summary plan descriptions for any pension or retirement plan; b. Copy of the pension or retirement plan document including all amendments and changes; c. Form 5500 and Schedule B for the last two years; d. Latest Actuarial Valuation, including docu- mentation upon which the actuarial valuation was based; e. Trustees statement for the last three plan years. 6. Please provide a list of employees on seasonal lay- off. 7. Please provide a list of any bargaining unit employ- ees on leave of absence, Family Medical leave, disabil- ity leave or Worker’s Compensation. 8. Please identify and provide a copy of all college policies, procedures, handbooks, memoranda and guidelines that affect or relate to the terms and condi- tions of employment for bargaining union employees. 9. Please provide a copy of all summary plan changes of departmental structure or operation. The Respondent denies that the information requested is relevant and necessary to the Union’s role as the ex- clusive collective-bargaining representative of the unit employees. It is well established, however, that with the exception of the employees’ social security numbers, which the General Counsel specifically excepts from the complaint,3 the requested information is presumptively relevant for the purposes of collective bargaining and must be furnished on request. See Trustees of Masonic Hall, 261 NLRB 436 (1982), and Mobay Chemical Corp., 233 NLRB 109 (1977). The Respondent has not attempted to rebut the relevance of the information re- quested by the Union. Accordingly, we grant the Motion for Summary judg- ment and will order the Respondent to bargain and to furnish the requested information with the exception of employee social security numbers. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation with an office and place of business in Hamden, Con- necticut, has been engaged as a nonprofit private univer- 3 See Sea-Jet Trucking Corp., 304 NLRB 67 (1991). sity. During the 12-month period ending August 31, 1999, the Respondent, in conducting its operations de- scribed above, derived gross revenues, excluding contri- butions which because of limitations by the grantor are not available for operating expenses, in excess of 1 mil- lion dollars and purchased and received at its facility goods valued in excess of $50,000 directly from points located outside the State of Connecticut. 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 organization within the meaning of Section 2(5) of the Act.4 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held June 4, 1999, the Union was certified on June 25, 1999, as the exclusive collec- tive-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time security department employees, including dispatchers, traffic control offi- cers, assistant supervisors, acting shift supervisors, and shift supervisors employed by Respondent at its Hamden, Connecticut facilities; but excluding all other employees, and professional employees and supervi- sors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain Since July 26, 1999, the Union, by letter, has requested the Respondent to bargain and to furnish information. Since July 26, 1999, the Respondent has refused to fur- nish information, and since August 11, 1999, the Re- spondent has refused to bargain. We find that this re- fusal constitutes an unlawful refusal to bargain in viola- tion of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By refusing on and after July 26, 1999, to bargain with the Union as the exclusive collective-bargaining repre- sentative of employees in the appropriate unit and to fur- nish the Union requested information, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Sec- tion 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and 4 The Respondent’s answer denied the Union’s status as a labor or- ganization. In the underlying representation case, the Regional Direc- tor found that the petitioner is a labor organization and the Respondent did not request review of that finding. Consequently, the Respondent is precluded from litigating the issue in this proceeding. See Sec. 102.67(j) of the Board’s Rules. QUINNIPIAC COLLEGE 3 desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. We also shall order the Respon- dent to furnish the Union the information requested with the exception of employees’ social security numbers. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification 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, Quinnipiac College, Hamden, Connecticut, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Security Department Membership, as the exclusive bargaining representative of the employees in the bargaining unit, and refusing to furnish the Union information that is relevant and neces- sary to its role as the exclusive bargaining representative of the unit employees. (b) In any like or related manner interfering with, re- straining, 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) On request, bargain with the Union as the exclu- sive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the under- standing in a signed agreement: All full-time and regular part-time security department employees, including dispatchers, traffic control offi- cers, assistant supervisors, acting shift supervisors, and shift supervisors employed by Respondent at its Hamden, Connecticut facilities; but excluding all other employees, and professional employees and supervi- sors as defined in the Act. (b) Furnish the Union the information it requested on July 26, 1999, with the exception of employees’ social security numbers. (c) Within 14 days after service by the Region, post at its facility in Hamden, Connecticut, copies of the at- tached notice marked “Appendix.”5 Copies of the notice, 5 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained 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. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facil- ity involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since July 26, 1999. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 7, 2000 Sarah M. Fox, Member Wilma B. Liebman, Member Peter J. Hurtgen, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Security Depart- ment Membership as the exclusive representative of the employees in the bargaining unit, and WE WILL NOT ref- use to furnish the Union information that is relevant and necessary to its role as the exclusive bargaining repre- sentative of the unit employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time security department employees, including dispatchers, traffic control offi- cers, assistant supervisors, acting shift supervisors, and shift supervisors employed by us at our Hamden, Con- necticut facilities; but excluding all other employees, and professional employees and supervisors as defined in the Act. WE WILL furnish the Union the information it requested on July 26, 1999, with the exception of employees’ so- cial security numbers. QUINNIPIAC COLLEGE