The New School For Social Research

NEW SCHOOL FOR SOCIAL RESEARCH Parsons School of Design, a Division of the New School for Social Research and Parsons Faculty Federation, New York State United Teachers, American Federation of Teachers, AFL-CIO. Case 2-CA-20717 19 April 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS Upon a charge filed by the Union 8 November 1984, the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing on 29 November 1984 against Parsons School of Design, a Division of the New School for Social Research, the Respondent, alleging that it has violated Section 8(a)(5) and (1) of the Na- tional Labor Relations Act. The complaint alleges that on 3 October 1984, following a Board election in Case 2-RC-19396, the Union was certified as the exclusive collective- bargaining representative of the Respondent's em- ployees in the unit found appropriate. (Official notice is taken of the "record" in the representation proceeding as defined in the Board's Rules and Regulations, Secs. 102.68 and 102.69(g), amended Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel, 265 NLRB 343 (1982).) The complaint fur- ther alleges that since 9 November 1984, the Com- pany has refused to bargain with the Union. On 7 December 1984 the Respondent filed its answer ad- mitting in part and denying in part the allegations in the complaint. On 2 January 1985 the General Counsel filed a Motion for Summary Judgment with exhibits at- tached. On 4 January 1985 the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. Subsequently, the Respondent filed an opposition to the Motion for Summary Judg- ment. Ruling on Motion for Summary Judgment In its answer to the complaint, the Respondent denies that the unit of employees certified in Case 2-RC-19396 is appropriate for the purposes of col- lective bargaining, that the Union is the exclusive representative of the employees in the unit, and that the Respondent has violated the Act by its re- fusal to bargain. As an affirmative defense, the Re- spondent contends that the unit is not appropriate and that the election was invalid because the notice of election misled the eligible voters concerning the scope of the unit for which the election was purportedly conducted. 173 In its opposition to the Motion for Summary Judgment, the Respondent argues that the unit is inappropriate and challenges the Regional Direc- tor's decision to overrule its objections to the elec- tion and to certify the Union . The Respondent also, in effect, requests the Board to reconsider the ap- plication of Section 102.67 (b) of the Board's Rules and Regulations, which permits an election to be conducted while a party's request for review of a Regional Director's order is pending with the Board ' in light of Hamilton Test Systems v. NLRB, 743 F.2d 136 (2d Cir. 1984).2 The General Counsel asserts that the Respondent seeks to relitigate issues that were raised and decid- ed in the underlying representation case. The Gen- eral Counsel further argues that Hamilton Test Sys- tems is distinguishable from the instant case and that it would be inappropriate to apply the court's rationale to the facts presented herein . We agree with the General Counsel. Our review of the record , including the record in Case 2-RC-19396, reveals that, on a petition duly filed and subsequently amended3 under Sec- tion 9(c) of the Act, a representation hearing was held, from 14 September through 12 November 1982, before Judy Minnette Sandler, a hearing offi- cer of the National Labor Relations Board. On 1 April 1983 the Regional Director issued his Deci- sion and Direction of Election in which he found appropriate a unit of all full-time and part-time in- structors employed by the Respondent at its New York City campus and directed an election be held from 9 through 12 May 1983. Thereafter , the Re- spondent filed a timely request for review of the Regional Director's decision, in which it chal- lenged the Regional Director's finding that the full- time/part-time faculty unit was an appropriate unit. The Respondent alternatively contended that a unit comprised of part-time instructors employed at its New York facility was likewise inappropriate. The ' The relevant portion of Sec 102 67 (b) provides "if a pending request for review has not been ruled upon or has been granted, ballots whose validity might be affected by the final Board decision shall be segregated in an appropriate manner, and all ballots shall be impounded and remain unopened pending such decision." 2 In Hamilton Test Systems, supra, the Second Circuit refused to en- force a bargaining order, in the circumstances where the unit set out in the notice of election in a Board election differed significantly from the unit eventually found appropriate and, in the opinion of the court, misled the voters as to the scope of the bargaining unit in which the election was being conducted The court thus remanded the case to the Board By unpublished Order dated 15 February 1985 the Board accepted the court's opinion as the law of the case and directed a second election in the unit found appropriate 3 By its petition dated 27 August 1982, the Union sought to represent a unit of all the Respondent's full-time and part-time instructors Thereaf- ter, during the hearing, the Union amended its petition to include the Re- spondent's part-time instructors and exclude all of the full-time instruc- tors 275 NLRB No. 18 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board subsequently granted the Respondent's re- quest for review. On-9 through 12 May 1-983, a secret-ballot elec- tion was conducted, and pursuant -to the instruc- tions of the Acting Solicitor of the Board, the bal- lots of the full-time instructors and part-time in- structors were segregated into two groups and im- pounded pending the Board's _ decision on review. On 21 February 1984 the Board issued a decision on review in which the full-time instructors were excluded from the unit.4 On 23 March 1984 the ballots of the part-time instructors were opened and counted. The tally of ballots served on the Union showed that 94 ballots had been cast for the Union, 90 ballots cast against the Union, and the 14 challenged ballots were sufficient in number ' to affect the results of the election. On 30 March 1984 the Respondent filed timely objections to the elec- tion which were overruled by the Regional Direc- tor's'supplemental decision issued 4 May 1984. Thereafter, the Respondent filed a request for review alleging, inter alia, that the unit was inap- propriate and that the 'election was invalid as the election was held in circumstances 'where the' notice described a unit different from the one which the Board later found appropriate and that this difference precluded 'employees from making a free, informed, and reasoned decision. By tele- graphic order dated 19 June 1984, the Board denied the Respondent's request for review: On 25 July 1984 the Regional Director issued his Second Supplemental Decision and Order Directing'Count- ing of Certain Ballots, in which he overruled 7 of the =14 challenged ballots and sustained 3. He addi- tionally directed that the ballots-of the seven em- ployees found eligible be opened and counted and that a revised tally issue. He further recommended, in the event that the four remaining challenged bal- lots then proved determinative, that.a hearing be held to resolve factual issues raised by these chal- lenges. There was no request for review filed in re- sponse to this decision. The revised tally showed 99,votes for the Union, and 92 against,. with 4 non- determinative challenged' ballots remaining. On 3 October 1984, based on the revised tally of ballots, the Regional Director issued a . Certification of Representative, certifying the Union as the exclu- sive representative of employees in the unit. It is well settled that in the absence of newly dis- covered and previously unavailable evidence or special circumstances, a respondent in a proceeding 4 See 268 NLRB 154 The decision on review directed an election in the part-time faculty unit found appropriate By unpublished Order dated 8 March 1984, the Board deleted the direction of election and directed the Regional. Director to open and count the previously impounded bal- lots alleging a violation-of Section 8(a)(5) is not entitled to relitigate issues that were or could have been litigated in a prior representation proceeding. See Pittsburgh- Glass. Co. v. NLRB, 313 U.S. 146, 162 (1941); Secs. 102.67(f) and 102.69(c) of the Board's Rules and Regulations. All issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to adduce at a hearing any newly discovered and pre- viously unavailable evidence, nor -does it allege any special circumstances that would require the Board to reexamine the decision made in the representa- tion proceeding. We therefore find_ that the Re- spondent has not raised any issue' that is properly litigable in this unfair labor practice proceeding. We further agree with the General Counsel that Hamilton Test Systems, supra, is factually distin- guishable from the instant case. In that case, em- ployee ballots were impounded following an elec- tion in a unit of approximately 31 employees, in- cluding field service representatives, field service supervisors, technicians, crib attendants, and truck- drivers. The unit was subsequently modified to in- clude only the technicians, crib attendants, and truckdrivers, excluding a total of 17 employees in the field service representative and supervisor posi- tions. Based on a vote of 6 to 4 in favor of union representation, the union was then certified. The court remanded the case to the Board finding that the Board had acted unreasonably in not affording the employees an opportunity to vote for or reject representation in a unit comprised only of techni- cians, crib attendants, and truckdrivers. In so find- ing, the court found several reasons why these em- ployees might have voted differently had they known the true nature of the unit in which they were to be placed: (1) the employees might have believed that a smaller unit would provide insuffi- cient bargaining strength; (2) technicians might not have wished to be part of a unit which included only the lower-paid employee classifications of crib attendant and truckdriver; and (3) employees might not have supported a union which represented only a part of the work force (approximately 45 percent, rather than 100 percent), because they might have believed such representation could produce divi- siveness and, undersirable tensions in the workplace, and interpersonal relationships within the :plant might have made an individual employee comforta- ble with a facilitywide unit but caused concern over leadership in a smaller unit. By contrast, in the present case, the total number of employees excluded from the unit found appro- priate was approximately 20 out of a total of 225-- 230 employees, or approximately 10 percent of the NEW SCHOOL FOR SOCIAL RESEARCH 175 unit. Thus, the significant diminution of bargaining strength faced by employees in Hamilton Test Sys- tems is not present here. Additionally, the proposed unit in the instant case did not combine lower-paid employee positions with higher-paid classifications as was true of Hamilton Test Systems, but included only one category-instructors. Thus, the possibili- ty that unit employees may not have voted for a unit comprised only of lower-paid positions is also not present, here. Finally, over 90 percent of the employees sought to be represented by the Union remained in the modified unit, thereby diminishing the potential for divisiveness and undesirable ten- sions in the workplace that, in the opinion of the court in Hamilton Test Systems, a_ substantially smaller unit may have produced: Accordingly, Hamilton Test Systems is distinguishable and we do not find- Respondent's reliance on that .case a basis for directing a new election here.5 Accordingly, we grant the General Counsel's Motion for Sum- mary Judgment.6 On the entire record, the Board makes the fol- lowing FINDINGS OF FACT 1. JURISDICTION The Respondent, a New York not-for-profit cor- poration with places of business located in New York, New York, Los Angeles, California, and Paris, France, is engaged in the operation of insti- tutions for higher ' education. Annually, the Re- spondent, in the course and conduct of its business operations, derives gross revenues in excess of $1 million, excluding contributions, which, because of limitations by the' grantor, are not available for op- eratingexpenses. Additionally, in the course and conduct of its business operations, the Respondent purchases and receives at its New York, New York facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of New York. Accordingly, we find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the 5 For the reasons noted above, Member Hunter would likewise find this case distinguishable from Thomson Newspaper, 273 NLRB 350 (1984) In that case, an election was held in a unit of approximately 15 employ- ees, employed in driver and mailroom positions On review, the Board found a unit of only the five mailroom employees appropriate, thereby excluding approximately two-thirds of the proposed unit In,his dissent Member Hunter, citing the court's opinion in Hamilton Test Systems, found that this modification. precluded an informed choice by employees where the five mailroom employees may have believed that a smaller bargaining unit would provide insufficient bargaining power or could produce divisiveness and tension in the workplace Such circumstances are not present here 6 Contrary to the Respondent, there is no need for a hearing as to why the election could not have been postponed to issue corrected notices of election, or why a different type election than that conducted was not run here Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held 9 through 12 May 1983, the Union was certified 3 October 1984 as the collective-bargaining representative of the em- ployees in the following appropriate unit: All part-time instructors employed by the Re- spondent at its New York City campus, ex- cluding all full-time instructors, deans, founda- tion year director, department chairpersons, department coordinators, librarians, techni- cians, instructors in the Respondent's continu- ing education program, office clerical employ- ees, guards, and supervisors as defined in the Act. - The Union continues to be the exclusive represent- ative under Section 9(a) of the Act. B. Refusal to Bargain Since 17 October 1984 the Union has requested the Respondent -to bargain, and since 9 November 1984 the Respondent has refused. We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after 9 November 1984 to bargain with the Union as the exclusive collective- bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 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 desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the ini- tial 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). 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The National Labor Relations Board orders that the Respondent, Parsons School of Design, a Divi- sion of the New School for Social Research, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with Parsons Faculty Federation, New York State United Teachers, American Federation of Teachers, AFL-CIO as the exclusive bargaining representative of the em- ployees in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All part-time instructors employed by the Re- spondent at its New York City campus, ex- cluding all full-time instructors, deans, founda- tion year director, department chairpersons, department coordinators, librarians, techni- cians, instructors in the Respondent's continu- ing education program, office clerical employ- ees, guards, and supervisors as defined in the Act. (b) Post at its facility in New York, New York, copies of the attached notice marked "Appendix."7 Copies of the notice, on forms provided by the Re- gional Director for Region 2, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, 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 Respondent 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 ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Parsons Faculty Federation, New York State United Teachers, American Federation of Teachers, AFL- CIO, as the exclusive representative of the employ- ees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise 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 conditions of employment for our employees in the bargaining unit: All part-time instructors employed by the Re- spondent at its New York City campus, ex- cluding all full-time instructors, deans, founda- tion year director, department chairpersons, department coordinators, librarians, techni- cians, instructors in the Respondent's continu- ing education program, office clerical employ- ees, guards, and supervisors as defined in the Act. PARSONS SCHOOL OF DESIGN, A DI- VISION OF THE NEW SCHOOL FOR SOCIAL RESEARCH 7 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 Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board."