Kendall College Of Art And Design

KENDALL COLLEGE OF ART David Wolcott Kendall Memorial School a/k/a Ken- dall College of Art and Design and Kendall Faculty Association, MEA/NEA Case 7-CA- 27798 February 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 15, 1988, Administrative Law Judge Wallace H Nations issued the attached deci sion The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed a brief in response to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and briefs' and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, David Wol- cott Kendall Memorial School a/k/a Kendall Col- lege of Art and Design, Grand Rapids, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order ' The Respondent has requested oral argument The request is denied as the record exceptions and briefs adequately present the issues and po sitions of the parties 2 We note that the Board s Order directing the Respondent to bargain in Kendall School of Design 283 NLRB No 44 (Mar 20 1987) (not re ported in Board volume) enfd 866 F 2d 157 (6th Cir 1989) The court specifically affirmed the Board s rejection of defenses reiterated by the Respondent in this case alleging that the faculty bargaining unit repre sented by the Union is inappropriate Dwight R Kirksey Esq, for the General Counsel Robert C Stone Esq, of Grand Rapids Michigan for the Respondent M Catherine Farrell Esq of Sountfield Michigan for the Charging Party DECISION STATEMENT OF THE CASE WALLACE H NATIONS Administrative Law Judge On February 26, 1988, Kendall Faculty Association, MEA/NEA (the Union) filed a charge against David Wolcott Kendall Memorial School a/k/a Kendall Col lege of Art and Design (Kendall or Respondent) On March 25, 1988, the Regional Director for Region 7 issued a complaint alleging that Respondent has been and is engaging in conduct violative of Section 8(a)(1) and 1065 (5) of the National Labor Relations Act (the Act) On August 1, 1988, the Regional Director filed an amend ment to the complaint altering the description of the unit appropriate for bargaining as follows All teaching fac ulty, excluding office employees, maintenance personnel and supervisors Hearing was held in this matter on September 16, 1988, in Grand Rapids, Michigan Briefs were received from all parties on or about November 21 1988 Based on the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs, I make the following FINDINGS OF FACT I JURISDICTION The Respondent is a Michigan corporation with an office and place of business in Grand Rapids, Michigan, where it is engaged in the operation of a private non profit college Respondent has admitted the factual juris dictional allegations of the complaint and I find that the Respondent is now, and has been at all times material to this proceeding, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION INVOLVED It is admitted and I find, that the Union is now, and has been at all times material to this proceeding, a labor organization within the meaning of the Act III ALLEGED UNFAIR LABOR PRACTICES A Statement of Issues The complaint raises the following issues 1 Did Respondent violate the Act by refusing to pro vide the Union with information it requested and which is necessary to the performance of its function as the col lective bargaining representative of the unit employees? 2 Did Respondent violate the Act by refusing to bar gain over the effects of its decision to implement a re quirement that part time and adjunct faculty obtain ad vanced degrees? B Background Facts and History of this Dispute Since 1974 the Union has been the exclusive bargain ing representative of Respondents teaching faculty Re spondent and the Union negotiated four successive col lective bargaining agreements the most recent of which was effective from August 1, 1977 to August 1, 1980 However on May 7 1980 Respondent withdrew recog- nition from the Union and has, to date, refused to bar gain with the Union Following the withdrawal of recognition, the Union filed unfair labor practice charges with the Board and a consolidated complaint was issued in Cases 7 -CA-17837, 7-CA-17983 7-CA-18068 and 7-CA-18542 Thereafter, additional cases were consoldiated with Case 7-CA- 17837, and an amended complaint was issued On October 5, 1981, Adminstrative Law Judge Lowell Goerlich opened the unfair labor practice hearing on the 292 NLRB No 120 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consoldiated amended complaint. Judge Goerlich, in agreement with the parties, adjourned the unfair labor practice proceeding indefinitely, pending the filing of a unit clarification petition to resolve the appropriateness of the bargaining unit at issue in the unfair labor practice proceeding. Thereafter, on October 9, 1981, Respondent filed a unit clarification petition in Case 7-UC-226, seeking to have its faculty declared to be managerial employees. On December 28, 1982, the Regional Director for Region 7 issued a decision and order in which the UC petition was dismissed based on his finding, among other things, that Respondent's faculty members were not managerial em- ployees. Respondent requested review of the Regional Director's decision and the Board granted review. On April 14, 1986, the Board affirmed the Regional Direc- tor's findings and conclusions at 279 NLRB 281 (1986). During the pendency of the representation case, vari- ous other charges were filed against the Respondent by the Union and these cases were consolidated with the outstanding complaints then being held in abeyance before Judge Goerlich. On October 2, 1986, Judge Goerlich issued an order severing Case 7-CA-17837 from Cases 7-CA-17983, 7- CA-18068, 7-CA-18542, 7-CA-18979, 7-CA-20878, and 7-CA-21705, and Cases 7-CA-22458, 7-CA-23283, 7- CA-23887, 7-CA-24232, 7-CA-24889, 7-CA-25328, and 7-CA-25839. These remaining cases were continued sine die. But, on October 20, 1986, the hearing was resumed before Judge Goerlich in Case 7-CA-17837 and thereaf- ter that case was transferred directly to the Board for consideration of counsel for the General Counsel's Motion for Summary Judgment. Respondent filed a countermotion for Summary Judgment requesting dismis- sal of the complaint. On March 20, 1987, the Board issued its decision in Case 7-CA-17837 and ordered Respondent to bargain with the Union. Kendall School of Design, 283 NLRB No. 44 (not reported in Board volumes), 866 F.2d 157 (6th Cir. 1989). The Board specifically found that all material issues concerning the appropriateness of the bargaining unit had been or could have been litigated in the prior representation proceeding, Case 7-UC-226. Supra, slip op. at 3. In July 1987, Judge Goerlich resumed the hearing on the remaining complaint allegations that had been sev- ered from Case 7-CA-17837. On December 7, 1987, Judge Goerlich issued his decision, specifically finding that the Union continues to be the exclusive representa- tive of Respondent's teaching faculty. JD slip op. at 4. Respondent filed exceptions to Judge Goerlich's deci- sion. In its exceptions, Respondent specifically alleged that the bargaining unit found appropriate by the judge was not appropriate because it included department chairpersons for some purposes and excluded them for other purposes. The Board specifically addressed Re- spondent's exceptions on this issue by amending the de- scription of the appropriate bargaining unit to include all teaching faculty for all purposes. However, the Board specifically found that amending the description of the bargaining unit did not afford a defense to Respondent's refusual to bargain with the Union as the exclusive bar- gaining representative of the unit employees . Kendall College of Art, 288 NLRB 1205 fn . 2 (1988). See also Co- lonial Manor 1977, 253 NLRB 1183 , 1185 (1981), and Clark Manor Nursing Home Corp., 256 NLRB 456 ( 1981). The Board otherwise affirmed Judge Goerlich 's finding that the Union continues to be the exclusive bargaining representative for the unit employees. C. Facts Relating to the Instant Complaint During the 1987 fall semester at Kendall (September through December), several members of the school's ad- junct and full-time teaching faculty approached Union President Ruth Lantinaga to express concern that some adjunct faculty members were teaching a full-time load but getting less than full-time pay. Under the most recent collective-bargaining agreement between the Union and Respondent, the 1977-1980 contract, those faculty mem- bers who are now called adjunct are entitled to a pro rata share of a full-time faculty salary based on teaching load. In order to find out if adjunct faculty members were properly paid, the Union in early December 1987, by letter, requested from Respondent the teaching sched- ules of the adjunct faculty for the winter 1988 semester. Also in December 1987, Respondent held a faculty meeting to discuss implementation of the State of Michi- gan requirements for advance academic degrees by its adjunct and part-time faculty. On December 28, 1987, the Respondent distributed minutes of the December 21, 1987 faculty meeting to all faculty members. The meet- ing and minutes established that Respondent was now implementing the state requirement that all part-time and adjunct faculty members must obtain a master's degree or higher to retain their employment at Kendall. On Jan- uary 4, 1988, after receipt of Judge Goerlich's December 7, 1987 decision, the Union requested bargaining with Respondent over general terms and conditions of em- ployment for the teaching faculty. On January 6, 1988, Respondent, by letter, refused to bargain with the Union over any matters. However, on February 12, 1988, the Union did formally request that Respondent bargain over the effects of its decision to im- plement the requirement that all part-time and adjunct faculty members obtain at least a master's degree in order to retain their employment with Kendall. Respond- ent did not respond to the Union's February 12 letter re- quest and has not bargained with the Union. D. Did Respondent Violate the Act as Alleged in the Complaint? The facts concerning the Union's December 4, 1987 request for information about the teaching schedules of the adjunct employees are not in dispute. Respondent admits receiving the request and admits refusing to pro- vide the requested information. The type of information the Union is requesting is necessary and presumptively relevant to the Union's function as the exclusive bargain- ing representative of the teaching faculty. A. Aidui & Sons, 287 NLRB No. 133 fns. 3 & 4 (Feb. 24, 1988) (not reported in Board volumes). That Respondent is obligat- ed to bargain over the effects of its decision to imple- ment for part-time and adjunct faculty members the re- KENDALL COLLEGE OF ART 1067 quirements that they must have advanced degrees is similarly well settled Respondent was ordered to do just that regarding to its 1980 decision to implement this same state requirement for its full time faculty members (Respondent chose not to apply the requirements to part time and adjunct faculty until December 1987) Kendall School of Design, 283 NLRB No 44 slip op at 9-10 Respondent asserts that it is not obligated to bargain with the Union because the Board s decision concerning the appropriateness of the bargaining unit has been in error In this proceeding, where it is alleged that Re spondent is violating Section 8(a)(5) of the Act, Re spondent is now in essence attempting to relitigate issues that were or could have been litigated in Case 7-UC- 226, the prior representation case Respondent is doing so in the absence of newly discovered and previously un available evidence or special circumstances This it is not permitted to do Pittsburgh Plate Glass Co v NLRB, 313 U S 146, 162 (1941), Colonial Manor 1977, supra Respondent is further alleging that because the Board in its May 31, 1988 Decision and Order, at 288 NLRB 1205 fn 2, amended the appropriate bargaining unit de scription to include all teaching faculty members for all purposes, the Union no longer enjoys the presumption of continued majority status in the bargaining unit Howev er, the Board specifically found that the change in the unit description did not provide a defense to its refusal to bargain with the Union Furthermore, the Board of firmed Judge Goerlich s specific finding that the Union continues to be the exclusive bargaining representative of the employees in the appropriate bargaining unit, supra at 1206 As such, the Union is presumed to enjoy maton ty status among the unit employess and Respondent is obligated to bargain with the Union Respondent has presented no evidence to rebut this presumption, nor has it offered any evidence of changed material circum stances Therefore Respondent is further bound by the Board decision 288 NLRB 1205 Sabine Towing & Trans- port Co, 263 NLRB 114, 120-122 (1982), Bethlehem Steel Corp, 283 NLRB 254 fn 5 (1987) CONCLUSIONS OF LAW I Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act 2 The Union is a labor organization within the mean ing of Section 2(5) of the Act 3 By interfering with, restraining, and coercing em ployees in the exercise of their rights guaranteed by Sec tion 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 4 The following constitute a unit appropriate for col lective bargaining within the meaning of the Section 9(b) of the Act the employees in the appropriate unit within the meaning of Section 9(a) of the Act 6 By refusing since January 6, 1988, to provide the Union the relevant and necessary information requested on December 4 1987, regarding the teaching schedules of adjunct faculty members for the winter 1988 semester, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 7 By refusing, since January 4, 1988, to bargain with the Union as the exclusive representative of the employ ees in the above described appropriate unit, the Respond ent has engaged in and is engaging in unfair labor prac tices within the meaning of Section 8(a)(5) of the Act 8 By refusing, since February 12, 1988, to bargain with the Union over the effects of its unilateral change in the terms and conditions of employment of its employees by requiring that all part time and adjunct faculty mem bers must have an advances degree to remain employed, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 9 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act It having been found that the Respondent has unlaw fully refused to provide relevant and necessary informa tion requested by the Union on December 4 1987, and has unlawfully refused to bargain with the Union as the exclusive collective bargaining representative of its em ployees in the appropriate unit and further, has unlaw fully refused to bargain with the Union over the effects of its unilaterally implemented degree requirements for its part time and adjunct faculty members it is recom mended that Respondent be ordered to provide the infor mation requested and on request, bargain in good faith with the Union as the exclusive representative of its em ployees in the unit, including bargaining over the effects of its unilateral changes in conditions of employment de scribed above On these findings of fact and conclusions of law and on the entire record I issue the following recommend edt ORDER The Respondent, David Wolcott Kendall Memorial School a/k/a Kendall College of Art and Design Grand Rapids, Michigan, its officers, agents, successors, and as signs, shall All teaching faculty excluding office employees, maintenance personnel, and supervisors 5 At all tunes since August 19, 1974 the Union has been the exclusive collective bargaining representative of ' If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 Cease and desist from (a) Refusing to recognize Kendall Faculty Association, MEA/NEA as the exclusive collective bargaining repre sentative of the employees in the unit found to be appro prate All teaching faculty, excluding office employees, maintenance personnel , and supervisors (b) Refusing to provide the Union the relevant and necessary information requested on December 4, 1987, regarding the teaching schedules of adjunct faculty for the winter 1988 semester (c) Refusing to bargain with the Union as the exclusive representative of the employees in the above described appropriate unit (d) Refusing to bargain with the Union over the of fects of its unilateral change in the terms and conditions of employment of its employees by requiring that all part time and adjunct faculty members must have an ad vanced degree to remain employed (e) 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, recognize and bargain with the Union as the exclusive representative of the employees in the above described unit (b) On request, bargain with the Union over the effects of its unilateral change in conditions of employment re quinng advanced degrees of part time and adjunct facul ty members to remain employed (c) Supply the Union with the information requested December 4, 1987, regarding the teaching schedules of the adjunct faculty members for the winter 1988 semes ter (d) Post at its Grand Rapids Michigan, establishment copies of the attached notice marked Appendix 2 Copies of the notice, on forms provided by the Regional Director for Region 7 after being signed by the Re spondent s authorized representative, shall be posted by the Respondent immediately upon receipt 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 Respond ent to ensure that the notices are not altered, defaced or covered by any other material (e) 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 Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to recognize Kendall Faculty As sociation, MEA/NEA as the exclusive collective bar gaming representative of our employees in the following appropriate unit All teaching faculty, excluding office employees, maintenance personnel, and supervisors WE WILL NOT refuse to provide the Union the rele vant and necessary information requested on December 4, 1987, regarding the teaching schedules of adjunct fac ulty members for the winter 1988 semester WE WILL NOT refuse to bargain with the Union as the exclusive representative of our employees in the appro pnate unit WE WILL NOT refuse to bargain with the Union over the effects of our unilateral change in the terms and con ditions of employment of our employees by requiring that all part time and adjunct faculty members must have an advanced degree to remained employed by us 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, recognize and bargain with the Union as the exclusive representative of the employees in the above described unit WE WILL on request, bargain with the Union over the effects of our unilateral change in conditions of employ ment by requiring advanced degrees of part time and ad junct faculty members to remain employed WE WILL supply the Union with the information re quested regarding the teaching schedules of the adjunct faculty members for the winter 1988 semester DAVID WOLCOTT KENDALL MEMO RIAL SCHOOL A/K/A KENDALL COL- LEGE OF ART AND DESIGN 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 Nation al 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