Cornell University

CORNELL UNIVERSITY 4(9 Cornell University and United Food and Commercial Workers, District Union Local No. 1, affiliated with United Food & Commercial Workers In- ternational Union, AFL-CIO. Case 3-CA-9591 August 21, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE Upon a charge filed on February 15, 1980, by United Food and Commercial Workers, District Union Local No. 1, affiliated with United Food & Commercial Workers International Union, AFL- CIO, herein called the Union, and duly served on Cornell University, herein called Respondent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 3, issued a complaint on March 21, 1980, against Re- spondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge and the complaint and notice of hearing before an administrative law judge were duly served on the parties to this proceeding. With respect to the unfair labor practices, the complaint alleges in substance that on January 15, 1980, following a Board election in Case 3-RC- 7466, the Union was duly certified as the exclusive collective-bargaining representative of Respon- dent's employees in the unit found appropriate;' and that, commencing on or about February 13, 1980, and at all times thereafter, Respondent has refused, and continues to date to refuse, to bargain collectively with the Union as the exclusive bar- gaining representative, although the Union has re- quested and is requesting it to do so. On April 8, 1980, Respondent filed its answer to the complaint admitting in part, and denying in part, the allega- tions in the complaint. In its answer to the complaint Respondent set forth an affirmative defense in which it alleges that the Board's certification was issued contrary to Section 9(c)(5) of the Act in that the Board accord- ed undue weight to the extent of employee organi- zation. Official notice is taken olf the record in the representation proceed- ing, Case 3-RC 7466, as the term "record" is defined in Secs 12 68 and 102 69(g) of the Board's Rules and Regulations. Series 8., as amended See LTV Elecirovytems, Inc.. 166 NLRB 938 (1967). enfd. 388 F2d 683 (4th Cir 1968); Golden Age Beverage Co.. 167 NLRB 151 (1967). eilfd 415 F.2d 26 (Sth Cir 1969): Inertype Co. s. Penllh. 269 F.Supli 573 (D.CVa 19671 Iillt Corp., 164 NLRB 378 (1967), enfd 3197 F2d 91 (7th Cir. 1968): Sec 9(d) of the NLRA, as amended 251 NLRB No. 72 On June 10, 1980, counsel for the General Coun- sel filed directly with the Board a Motion for Sum- mary Judgment. Subsequently, on June 12, 1980, the Board issued an order transferring the proceed- ing to the Board and a Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted. Respondent thereafter filed a response to the Notice To Show Cause. The General Counsel filed a statement in opposition to Respondent's response to the Notice To Show Cause. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. Upon the entire record in this proceeding, the Board makes the following: Ruling on the Motion for Summary Judgment In its answer to the complaint and response to the Notice To Show Cause, Respondent admits its refusal to bargain, but denies that it thereby violat- ed Section 8(a)(5) and (1) of the Act. Specifically, Respondent attacks the Union's certification on the basis that the Board, in making its unit determina- tion, assigned controlling weight to the employees' extent of organization in contravention of Section 9(c)(5) of the Act. Counsel for the General Counsel argues that the affirmative defense set forth in Respondent's answer constitutes an attempt to relitigate issues that were raised and determined by the Board in the underlying representation case. A review of the record herein, including the record in Case 3-RC-7466, shows that in an elec- tion held October 25, 1979, pursuant to the direc- tion of the Regional Director for Region 3, the Union was successful by a vote of 2-0. Respondent thereafter filed a timely objection to the conduct of the election alleging that the unit of two employees was inappropriate. After an investigation, the Regional Director issued a Report on Objection in which he over- ruled the objection, having found that the Employ- er was attempting to relitigate a matter already considered by the Board in its Decision and Direc- tion of Election. On November 12, 1979, the Employer filed an exception to the Regional Director's Report on Objection alleging that the Regional Director's rec- ommendation was contrary to provisions of the Act and to Board precedent. The Board adopted the Regional Director's findings and recommenda- tions and issued its Decision and Certification of Representative on January 15, 1980. CORNELL UNIVERSITY 4(39 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's response to the Notice To Show Cause argues that events occurring subsequent to the Union's certification reveal that the Union is pursuing an organizational strategy among Respon- dent's unrepresented employees based exclusively upon the extent of its organization. Respondent contends that communications addressed to its em- ployees by the Union indicate an intention to peti- tion for additional units solely on that basis. Fur- ther, Respondent contends that since the certifica- tion herein the Union had filed three additional representation petitions for limited groups of ser- vice and maintenance employees. After full consideration the Board has found the unit herein to be appropriate. The legislative man- date of Section 9(c)(5) of the Act, requiring the Board to not give controlling weight to a petition- er's extent of organization, will also be adhered to in any future unit determination affecting Respon- dent's employees. It thus appears that Respondent is attempting to introduce speculation about possi- ble future unit determinations by the Board to raise herein an issue that was raised and determined in the underlying representation case.2 It is well settled that in the absence of newly dis- covered or previously unavailable evidence or spe- cial circumstances a respondent in a proceeding al- leging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding. 3 All issues raised by Respondent in this proceed- ing were or could have been litigated in the prior representation proceeding, and Respondent does not offer to adduce at a hearing any newly discov- ered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board to reexamine the decision made in the representation proceeding. We therefore find that Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. Accordingly, we grant the Motion for Summary Judgment. On the basis of the entire record, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a nonprofit New York corporation, is engaged in the operation of a private education institution. Respondent annually derives gross rev- 2 For this reason we deny Respondent's request to lake official inotic of the records in representation proceedings involving the Union and Re- spondent arising subsequent to the certification of the Union in Case 3 RC-7466 3 See Pitlshurgh Platt' Glass Co. v N.L.R.B.. 313 U S 146, 162 (1941)1 Rules and Regulations of the Hoard, Secs. 102.67(f and 102.6 9 (c). enues in excess of $1 million, which amount ex- cludes contributions which, because of limitation by the grantor, are not available for operating ex- penses. It also annually purchases and receives goods and materials valued in excess of $10,000 di- rectly from suppliers outside the State of New York. We find, on the basis of the foregoing, that Re- spondent is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Food and Commercial Workers, District Union Local No. 1, affiliated with United Food & Commercial Workers International Union, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of Respondent consti- tute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All full-time meatcutters employed by Respon- dent at The Meat Shop, Cornell University, Judd Falls Road, Ithaca, New York; excluding all managers, students, office and clerical workers, professional workers, guards and su- pervisors as defined in the Act. 2. The certification On October 25, 1979, a majority of the employ- ees of Respondent in said unit, in a secret-ballot election conducted under the supervision of the Regional Director for Region 3, designated the Union as their representative for the purpose of collective bargaining with Respondent. The Union was certified as the collective-bargaining represen- tative of the employees in said unit on January 15, 1980, and the Union continues to be such exclusive representative within the meaning of Section 9(a) of the Act. B. The Request To Bargain and Respondent's Refusal Commencing on or about January 22, 1980, and at all times thereafter, the Union has requested Re- spondent to bargain collectively with it as the ex- clusive collective-bargaining representative of all CORNELL UNIVERSITY 411 the employees in the above-described unit. Com- mencing on or about February 13, 1980, and con- tinuing at all times thereafter to date, Respondent has refused, and continues to refuse, to recognize and bargain with the Union as the exclusive repre- sentative for collective bargaining of all employees in said unit. Accordingly, we find that Respondent has, since February 13, 1980, and at all times thereafter, re- fused to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and that, by such refusal, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its oper- ations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of com- merce. V. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, we shall order that it cease and desist therefrom, and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of certi- fication as beginning on the date Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962); Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817; Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW I. Cornell University is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers, Dis- trict Union Local No. 1, affiliated with United Food & Commercial Workers International Union, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All full-time meatcutters employed by Respon- dent at The Meat Shop, Cornell University, Judd Falls Road, Ithaca, New York; excluding all man- agers, students, office and clerical workers, profes- sional workers, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. Since January 15, 1980, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collec- tive bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about February 13, 1980, and at all times thereafter, to bargain collectively with the above-named labor organization as the ex- clusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Cornell University, Ithaca, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Food and Commercial Workers, District Union Local No. I, affiliated with United Food & Commercial Work- ers International Union, AFL-CIO, as the exclu- CORNELL UNIVERSITY 411 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sive bargaining representative of its employees in the following appropriate unit: All full-time meatcutters employed by Respon- dent at The Meat Shop, Cornell University, Judd Falls Road, Ithaca, New York; excluding all managers, students, office and clerical workers, professional workers, guards and su- pervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such under- standing in a signed agreement. (b) Post at The Meat Shop, Cornell University, Judd Falls Road, Ithaca, New York, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Di- rector for Region 3, after being duly signed by Re- spondent's representative, shall be posted by Re- spondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 4 In the event that 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 Pursu- ant to a Judgment of the Unt ed States Court of Appeals Enforcing an Order of the National Relations Board." (c) Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with United Food and Commercial Workers, District Union Local No. i, affiliated with United Food & Commercial Workers Interna- tional Union, AFL-CIO, as the exclusive rep- resentative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive represen- tative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time meatcutters employed by the Em- ployer at The Meat Shop, Cornell University, Judd Falls Road, Ithaca, New York; excluding all managers, students, office and clerical workers, professional workers, guards and supervisors as defined in the Act. CORNELL UNIVERSITY