Carroll College, Inc.

350 NLRB No. 30 Carroll College, Inc. and International Union, United Automobile, Aerospace & Agricultural Imple- ment Workers of America-UAW. Case 30–CA– 17352 July 20, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER This is a refusal-to-bargain case in which the Respon- dent is contesting the Union’s certification as bargaining representative in the underlying representation proceed- ing. Pursuant to a charge filed on December 8, 2005, the Acting General Counsel issued the complaint on January 5, 2006, alleging that the Respondent has violated Sec- tion 8(a)(1) and (5) of the Act by refusing the Union’s request to bargain following the Union’s certification in Case 30–RC–6594. (Official notice is taken of the “re- cord” in the representation proceeding 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 deny- ing in part the allegations in the complaint, and asserting affirmative defenses. On January 23, 2006, the General Counsel filed a Mo- tion for Summary Judgment. On January 30, 2006, 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, and the Union filed a brief in support of the General Counsel’s motion. Thereafter, the Respondent filed three supple- mental responses to the Notice to Show Cause, the Union filed a reply to the Respondent’s third supplemental re- sponse, and the Respondent filed a response to the Union’s reply. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tends that the Union was improperly certified in the repre- sentation proceeding because the Board erred in finding that (1) the Respondent’s faculty members who constitute the certified unit are not managerial employees excluded from the Act; and (2) the Respondent is not exempt from coverage of the Act by virtue of the provisions of the Reli- gious Freedom Restoration Act (RFRA).1 1 The Respondent also argues that the General Counsel does not have the authority to issue the 8(a)(5) complaint in this case because Sec. 3(d) of the Act is an unconstitutional limitation on the President’s executive power. As the Respondent concedes, however, the Board Regarding the managerial status issue, the Respondent contends that summary judgment is inappropriate here because the Board “has yet to issue an opinion stating rea- sons why” the Respondent’s faculty are not managerial employees. In addition, the Respondent urges the Board to deny the General Counsel’s motion and direct the Gen- eral Counsel to evaluate the record in the representation case in light of the Board’s decision in LeMoyne-Owen College, 345 NLRB No. 93 (2005), in which the Board found faculty members to be managerial employees. The Respondent argues that the facts in the instant case are “indistinguishable” from those in LeMoyne-Owen College. Finally, the Respondent contends that the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Point Park University v. NLRB, 457 F.3d 42 (2006), requires the Board to reconsider its finding in the underly- ing representation case that the Respondent’s faculty are not managerial employees. We find no merit in the Respondent’s contentions. By Order dated May 11, 2005, the Board denied the Respon- dent’s request for review of the Acting Regional Director’s finding that the faculty are not managerial employees. The Board again upheld the Acting Regional Director’s finding that the unit employees are not managerial when, on Octo- ber 26, 2005, it denied the Respondent’s request for re- view of the Acting Regional Director’s Supplemental De- cision, Order Overruling Objections, and Certification of Representative. In both instances, the Board fully consid- ered the merits of the managerial status issue and deter- mined that the Respondent had failed to demonstrate that review of the Acting Regional Director’s thorough and well-reasoned decisions was warranted.2 In addition, there is no merit in the Respondent’s argu- ment that the underlying representation case should be reopened for further consideration in light of the Board’s September 30, 2005 decision in LeMoyne-Owen College, supra. The Board’s October 26, 2005 Order sustaining the Acting Regional Director’s certification of the Union was issued after the Board’s decision in LeMoyne-Owen Col- lege, and that decision was duly considered by the Board in upholding the Acting Regional Director’s finding that the Respondent’s faculty are not managerial employees. Thus, the Board concluded in the underlying representa- tion case that the facts in LeMoyne-Owen College are dis- tinguishable from those of the instant case. As found by the Acting Regional Director in the representation case, assumes the constitutionality of the Act that it administers, and there- fore we do not address this contention. 2 Sec. 102.67(f) of the Board’s Rules and Regulations provides that “[d]enial of a request for review shall constitute an affirmance of the Regional Director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 the proposals of the Respondent’s faculty committees re- garding degree requirements, curriculum, and the addition and deletion of majors and courses are independently re- viewed by the Respondent’s administration and have been rejected by the administration. Further, the Respondent’s administration can prevent proposals by the several faculty committees from ever being considered by the school’s academic steering committee. This differs markedly from LeMoyne-Owen College, where the evidence showed that faculty proposals related to courses, curriculum, and de- gree requirements were always approved and implemented by the administration and the college’s board of trustees without independent review or modification.3 We also find unavailing the Respondent’s reliance on the D.C. Circuit’s decision in Point Park University, supra. In Point Park, the Board denied the university’s request for review of a Regional Director’s finding that its faculty members were not managerial employees. The D.C. Cir- cuit concluded that the Regional Director had erred in not explaining which factors he primarily relied on in finding the faculty to be nonmanagerial, and not setting forth his reasoning for doing so. The court held that in determining whether faculty members are managerial employees, the Regional Director (or the Board) must state “which factors are significant and which less so, and why.”4 Consistent with the court’s decision in Point Park, in this case the Acting Regional Director fully explained the factors on which he relied and the weight he gave the vari- ous factors for finding that the Respondent’s faculty are not managerial employees. The Acting Regional Director stated that in determining whether the Respondent’s fac- ulty exercise managerial authority, “the controlling issue . . . is whether the [faculty-dominated] committees effec- tively recommend or determine academic policy or ac- tion.” He then examined and discussed in detail the de- gree of control the Respondent’s faculty exercise over numerous aspects of academic policy and the College’s curriculum. Specifically, the Acting Regional Director found that the Respondent’s administration exercises sub- stantial independent control over the content of the cur- riculum, and the addition and deletion of courses and ma- jors. In addition, the Acting Regional Director found that al- though the faculty effectively determine the admission of students who fall below the Respondent’s traditional ad- missions standards, this factor is not enough to support a 3 Member Liebman, who dissented in LeMoyne-Owen College, finds it unnecessary to distinguish that case. 4 Thus, the court denied enforcement to the Board’s Order requiring Point Park to bargain with the union certified to represent the faculty, and remanded the case to the Board for further analysis and explication of the managerial issue. finding that the faculty are managerial. Moreover, the Acting Regional Director found that the faculty’s authority regarding admissions is tempered by the administration’s unfettered authority to adjust the admissions formula and to set enrollment limits and determine the overall size of the student body. The Acting Regional Director also concluded that al- though the Respondent’s faculty members determine the content of the courses they teach, set their office hours, design their syllabi, and create their attendance policies, these facts are insufficient to establish that faculty exercise managerial authority. The Acting Regional Director deemed it noteworthy that faculty do not determine or effectively recommend their class sizes, the scheduling of their courses, or the academic year. Finally, the Acting Regional Director stated that the faculty’s effective recommendation of employer policy in non-academic areas “is less significant in ascertaining managerial status.” After discussing the faculty’s author- ity over hiring, tenure and promotion, budget matters, staffing levels, terms of employment, and structural changes, the Acting Regional Director determined that the Respondent’s faculty do not exercise managerial authority over non-academic matters. In this regard, he found it significant that the administration had recently changed the structure of the College from one to two schools de- spite faculty opposition, and had restructured the admini- stration system without any input from the faculty. In sum, the Acting Regional Director thoroughly exam- ined the facts bearing on the faculty’s managerial status and fully discussed relevant Board and court precedent. Accordingly, we are convinced that the Acting Regional Director undertook a mode of analysis consistent with the D.C. Circuit’s decision in Point Park University, and that the Board carefully examined and endorsed the Acting Regional Director’s analysis of the relevant factors in de- ciding to deny review of his decision.5 With respect to the RFRA issue, the Respondent essen- tially asks for reconsideration of the Board’s decision in the representation case, issued on August 26, 2005, finding that the application of the Act to the Respondent does not violate RFRA.6 Under RFRA, if the governmental action substantially burdens the free exercise of religion, the gov- ernment must show a compelling interest for doing so. In 5 Contrary to the Respondent’s arguments set forth in its Third Sup- plemental Response to Notice to Show Cause, the Board’s September 29, 2006 decisions in Oakwood Healthcare, Inc., 348 NLRB No. 37; Golden Crest Healthcare Center, 348 NLRB No. 39; and Croft Metals, Inc., 348 NLRB No. 38, regarding the standards for determining super- visory status under Sec. 2(11) of the Act, are neither applicable nor instructive to deciding the managerial issue involved here. 6 345 NLRB No. 17 (2005). CARROLL COLLEGE, INC. 3 Gonzales v. O Centro Espirita Beneficente Uniao do Vege- tal, 546 U.S. 418 (2006), where the government conceded that application of the relevant law would substantially burden the free exercise of religion, the Court held that the government did not meet its burden of establishing a compelling interest. However, in the instant case, the Board held that the application of the NLRA to the Re- spondent would not substantially burden the Respondent’s free exercise of religion. The Respondent has not ad- vanced any reasons warranting reversal of this decision. Therefore, there was no burden on the government to show a compelling interest. Thus, 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 adduce at a hearing any newly discovered and previously unavail- able evidence, nor does it allege any special circumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice pro- ceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judgment.7 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, has been a private, nonprofit institution of higher learning in Waukesha, Wisconsin. During the 12-month period preceding issuance of the complaint, a representative period, the Respondent re- ceived/derived gross revenues, excluding contributions which because of limitation by the grantor are not avail- able for operating expenses, in excess of $1 million. During the same period, the Respondent, in the course and conduct of its business operations described above, purchased and received goods or services in excess of $5000 from suppliers located outside the State of Wiscon- sin. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that International Union, United Automo- bile, Aerospace & Agricultural Implement Workers of America-UAW (the Union) is a labor organization within the meaning of Section 2(5) of the Act. 7 We therefore deny the Respondent’s requests that the complaint be dismissed and for oral argument on the RFRA issue. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held February 11, 2005, the Un- ion was certified on September 30, 2005, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All full-time and regular part-time tenured and non- tenured teaching faculty employed by the Employer, excluding administrators, deans, adjunct faculty, all other employees, managerial employees, and guards and supervisors as defined by the Act. The Union continues to be the exclusive representative under Section 9(a) of the Act. B. Refusal to Bargain On around November 10, 2005, the Union, by letter, re- quested that the Respondent bargain collectively with the Union as the exclusive collective-bargaining representa- tive of the certified unit. Since at least November 23, 2005, the Respondent has failed and refused to bargain with the Union. CONCLUSION OF LAW By failing and refusing since November 23, 2005, to bargain with the Union as the exclusive collective- bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(1) and (5) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an un- derstanding 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 initial period of the certifica- tion as beginning the date the Respondent begins to bar- gain 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 Re- spondent, Carroll College, Inc., Waukesha, Wisconsin, its officers, agents, successors, and assigns, shall 1. Cease and desist from DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 (a) Refusing to bargain with International Union, United Automobile, Aerospace & Agricultural Implement Work- ers of America-UAW as the exclusive bargaining repre- sentative of the employees in the bargaining unit. (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 ef- fectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appropri- ate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time tenured and non- tenured teaching faculty employed by the Employer, excluding administrators, deans, adjunct faculty, all other employees, managerial employees, and guards and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Waukesha, Wisconsin, copies of the attached notice marked “Appendix.”8 Copies of the notice, on forms provided by the Regional Director for Region 30, after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, 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 facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Re- spondent at any time since November 23, 2005. 8 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.” (c) 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. 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT refuse to bargain with International Un- ion, United Automobile, Aerospace & Agricultural Im- plement Workers of America-UAW as the exclusive bar- gaining representative of the employees in the bargaining unit. 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 conditions of employment for our employees in the bar- gaining unit: All full-time and regular part-time tenured and non- tenured teaching faculty employed by us, excluding administrators, deans, adjunct faculty, all other em- ployees, managerial employees, and guards and super- visors as defined by the Act. CARROLL COLLEGE, INC.