Colorado Seminary

National Labor Relations Board - Board DecisionsAug 12, 1975

219 N.L.R.B. 1068 (N.L.R.B. 1975)

1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Colorado Seminary (University of Denver) and Office and Professional Employees International Union, Local No. 5, AFL-CIO. Cases 27-CA-4202 and 27-RC-4794 August 12, 1975 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS FANNING, JENKINS, AND PENELLO On April 30, 1975, Administrative Law Judge James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions. 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. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified herein. The Administrative Law Judge found that the Respondent's postelection failure to implement its decision to grant the night-shift wage differential de- cision, which was made prior to the filing of the peti- tion, violated Section 8(a)(1) and (3). The General Counsel agrees with this finding but contends that the remedy should be expanded to provide that the Respondent compensate the unit employees for the wage differential illegally withheld from them. We find merit in the General Counsel's exception. There- fore, we shall order that the Respondent implement the wage differential pursuant to its decision and make whole each employee for any loss suffered by its failure to implement that decision after the date of the election, June 26, 1974. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Colorado Seminary (University of Denver), Denver, Colorado, its officers, agents, successors , and assigns, shall take the action set forth in the said recommended Order, as modified below: 1. Insert the following as paragraphs 2(a) and 2(b) and reletter the subsequent paragraphs accordingly: "(a) Implement the decision reached prior to May 7, 1974, to provide the unit employees with a night- shift wage differential and make whole all employees for any loss they suffered by reason of its failure to implement the said differential after June 26, 1974. "(b) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records , social security payment records, timecards , personnel records and reports , and all other records necessary to analyze the amount of backpay due under the terms of this Order." 2. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held on June 26, 1974, in Case 27-RC-4794 be, and it hereby is, set aside , and that Case 27-RC-4794 be, and it hereby is , remanded to the Regional Director for the purpose of conducting a second election. [Direction of second election and Excelsior foot- note omitted from publication.] i The Respondent's request for oral argument is hereby denied as in our opinion the record , exceptions , and briefs adequately present the positions of the parties. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, for the purpose of influencing employees with respect to union activity, affilia- tion, assistance , or designation, announce that a decided-upon night-shift wage differential is not being put into effect because of the filing of a union representation petition. WE WILL NOT, for the purpose of influencing employees with respect to union activity, affilia- tion, assistance, or designation, fail or refuse to implement a decision to grant a night-shift wage differential to employees. As it has been found that we violated the Act when we failed to implement a decision to grant a night-shift wage differential to employees on or after June 27, 1974, WE WILL implement our decision to grant such differential and WE WILL pay our employees any benefits they lost by rea- son of our failure to implement such differential on or after June 27, 1974, including backpay if any is due. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, 219 NLRB No. 174 COLORADO SEMINARY to join or assist Office and Professional Employ- ees International Union , Local No . 5, AFL- CIO, or any other labor organization , to bargain collectively with representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a condition of employment , in conformity with Section 8 (a)(3) of the Act. COLORADO SEMINARY (UNIVERSITY OF DEN- VER) DECISION STATEMENT OF THE CASE JAMES T. BARKER , Administrative Law Judge : This case was heard before me at Denver, Colorado , on March 13, 1975, pursuant to a complaint and notice of hearing issued in Case 27-CA-4202 on August 30, 1974, by the Regional Director of the National Labor Relations Board for Re- gion 27, and an amendment to the complaint dated Sep- tember 13, 1974. 1 The amended complaint alleges viola- tions of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , hereinafter called the Act. By virtue of the amendment , the issues raised by the com- plaint are consolidated for consideration and hearing with the issues arising in Case 27-RC-4794, and evolving from a resolution made by the Regional Director in his September 5 Report on Objections to Election . The election in Case 27-RC-4794 was conducted on June 26 and the charge giving rise to the unfair labor practice complaint was filed on July 17, by Office and Professional Employees Interna- tional Union , Local No. 5, AFL-CIO, hereinafter called the Union . The parties timely filed briefs with me on April 21. Upon the entire record in this case , I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Colorado Seminary (University of Denver), hereinafter called Respondent , has been , at all times material herein, a Colorado corporation and a private , nonprofit college 1 Unless otherwise specified , all dates herein refer to the calendar year 1974. 1069 chartered in 1864 by the territorial legislature. In the course and conduct of its business operations , Respondent annu- ally has a gross revenue from all sources, excluding contri- butions which are not available for use for operating ex- penses because of limitations by the grantor, of at least $1 million. Upon these facts, which are not in issue, I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent concedes, and I find, that at all times material herein Office and Profes- sional Employees International Union, Local No. 5, AFL- CIO, has been a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The issues in this case are whether Respondent violated Section 8(a) (1) and (3) of the Act by announcing at a convened meeting of unit employees conducted 1 day be- fore the scheduled National Labor Relations Board repre- sentation election in Case 27-RC-4794 , that a planned night-shift wage differential for unit employees would not be put into effect because of the pendency of the election; whether this conduct warrants setting aside the June 26 election ; and whether Respondent similarly violated the Act by thereafter failing and refusing to implement its ear- lier decision. Respondent contends that the determination to withhold initial implementation of the wage differential decision and to thereafter abstain from its implementation was solely for the purpose of complying with controlling labor relations statutes and was not for the purpose of discouraging or frustrating employee rights to freely organize. B. Pertinent Facts 1. Background At pertinent times, the Respondent employed keypunch and computer operators on three separate shifts . During the early months of 1974, certain of the operators ad- vanced proposals to management having to do with hours and terms of employment, including a proposal for a shift differential . Meetings were held but no resolution satisfac- tory to employees was achieved. The Union was contacted by certain of the employees and on May 7 the representa- tion petition was filed in Case 27-RC-4794. Pursuant to a 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stipulation for Certification Upon Consent Election, a rep- resentation election was conducted on June 26 in the fol- lowing described unit: All keypunch operators employed by the Employer at University Hall and the Business Administration Building and all computer operators employed by the Employer at the Business Administration Building; excluding all students , all other employees , profession- al employees , guards and supervisors as defined in the Act. In the meantime , the administration of the University, through Vice Chancellor Phipps and his subordinate, Phil- ip Davis , manager of business affairs , and Davis ' subordi- nate , W. H. Richelberger, director of the computer center where certain of the unit employees were employed , under- took a study of the cost and policy feasibility of granting a shift differential to keypunch and computer operators. By late April, memoranda had been prepared in support of the study and, by early May, Phipps had instructed Davis to make the necessary budget allocation to provide for the grant and payment of a shift differential to include unit employees . Prior to May 7 , Davis prepared the memoran- dum necessary to effectuate Phipps' directive. The Respon- dent does not challenge the evidence of record to the effect that prior to May 7, when the Union filed its representa- tion petition, Phipps had reached a decision to grant the wage differential to keypunch and computer operators. 2. The alleged violations On June 25, the day prior to the representation election, Vice Chancellor Phipps called a meeting of the employees in the unit . The meeting was attended by most of the unit employees . It commenced at approximately 2 p.m. and lasted for approximately 90 minutes . During the course of the meeting and following comments by Vice Chancellor Phipps to the group , the legal propriety of which are not in issue , Marilyn Blake , a computer operator, addressed a question to Vice Chancellor Phipps to the effect that, if the University didn't want the employees in the Union, why did not the administration do something for the employees. Vice Chancellor Phipps responded by observing that, if he tried to make changes at that juncture , he would be cited for unfair labor practices . He added , "For instance-I probably should not be saying this here-but the day be- fore we received notice that you were to have a Union election , a shift differential had been approved , but now it will not take effect." In response , Laverne Freauff, a com- puter operator, said aloud, "You guys threw it down the drain; it was approved." 2 Philip Davis credibly testified that, upon receiving the Union's representation petition in the mail , he contacted the Mountain States Employers Council which served as labor relations adviser to the University. He spoke with a representative of the council and informed him of the re- ceipt of the representation petition and of the decision that 2 Freauff credibly testified that he had heard "scuttlebutt" about a shift differential and that he intended to address his remark to the operators who were union adherents and who had been working for the shift differential. had been reached prior to receiving the petition to grant a shift differential to employees in the unit . Davis was ad- vised by the representative of the council not to implement the decision. He was advised that it would be unlawful under the Act to do so. Davis knew of no effort on the part of the administration of the University to further discuss the legal efficacy of implementing the wage differential de- cision following the completion of the election procedures. The representation election was held on June 26 and three votes were cast for the Union, five votes were cast against the Union , and four ballots were challenged. In the investigation that followed, the challenges to three ballots were sustained and one challenge was overruled. Conclusions In agreement with the General Counsel , I find that Re- spondent violated Section 8(a)(1) and (3) of the Act by virtue of the remarks of Vice Chancellor Phipps to the as- sembled employees on June 25 , the day preceding the scheduled representation election ; and separately violated Section 8(a)(1) and (3) of the Act by its failure to imple- ment the decision to grant a night-shift wage differential to unit employees , which had been reached prior to the filing of the May 7 representation petition . I further find that Phipps' statement of June 25 interfered with the free choice of employees in selecting a bargaining representative and warrants setting aside the June 26 election. The General Counsel is correct in contending that an employer has a legal duty to proceed with respect to the granting or withholding of benefits as he would have done but for the advent of a union . The Gates Rubber Company, 182 NLRB 95 (1970). Nothing in the Act compels an em- ployer to undo a decision reached prior to the advent of a union which would redound to the favor of employees seeking to organize ; just as nothing in pertinent statutory law permits an employer to resort to largesse or benefi- cence as a means of countering organizing activity. J. C. Penny Co., Inc., v. N.L.R.B., 384 F .2d 479, 484 485 (C.A. 10, 1967); N.L.R.B. v. Dorn 's Transportation Company, Inc., 405 F.2d 706 (C.A. 2, 1969). When benefits are withheld in the critical preelection period and the benefits are discre- tionary with the employer and not necessarily expected, the permissible nature of the action is one of fact to be distilled from the record as a whole . The Singer Company, Friden Division, 199 NLRB 1195 (1972). If the evidence reveals that the employer granted or withheld benefits as an instru- ment for countering unionization, a violation of the Act occurs . N.L.R.B. v. Exchange Parts Company, 375 U.S. 405 (1964). The initial facet of the General Counsel's unfair labor practice allegation is controlled by the authoritative deci- sion of the Board in American Paper & Supply Company, 159 NLRB 1243 (1966). There the Board stated: The natural effect of the announcement was to con- vince the employees that they did not need a union in order to obtain wage increases or other improvements in their conditions of employment . Moreover, by shift- ing to the Union the onus for its not instituting the purported planned wage increase , the Respondent COLORADO SEMINARY 1071 sought to disparage and undermine the Union by car- rying the impression that the Union stood in the way of the employees getting a wage increase . Thus, Re- spondent held out to the employees a benefit they would be receiving but for the Union . By the fore- going conduct, we find that the Respondent interfered with , restrained , and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. Pertinent to the application of American Paper in the in- stant factual circumstance is the finding that the reference of Vice Chancellor Phipps to the wage differential decision was essentially gratuitous and not in any manner com- pelled by the challenge of employee Blake that the admin- istration do something beneficial for employees as a means of offsetting the appeal of the Union . Contrary to Respon- dent, Blake's inquiry did not disclose the shelving of the "embryonic night shift differential ." Vice Chancellor Phipps made that disclosure ; and the content of his state- ment was such as to place the onus of its failure to materi- alize on the Union .3 Clearly, if Phipps felt the necessity of entering a defense to Blake 's remarks , it was not incum- bent that he single out the night-shift differential and at- tribute its demise to the union effort . It is difficult to con- ceive that an academician , allegedly acting pursuant to legal advice , could not have formulated a more discreet and less polarizing statement . Indeed, the evidence disclos- es that Phipps recognized the probable impropriety of the statement uttered . I conclude he uttered his statement with the intent of undermining the Union . In any event, this was the foreseeable effect of his statement . Greater circumspec- tion on his part was required . See, e .g., The Singer Compa- ny, Friden Division, supra; Uarco Incorporated, 169 NLRB 1153 (1968 ), and Montana Lumber Sales Inc., 185 NLRB 46 (1970). Having found that Phipps' statement violated Section 8(a)(1) of the Act, I conclude that Respondent did thereby interfere with the employees ' free and untrammeled choice in the election . Dal-Tex Optical Company, Inc., 137 NLRB 1782 (1962). I shall therefore order the June 26 election set aside. In finding that Respondent's failure after the election to implement its earlier wage differential decision violated Section 8(a)(1) and (3) of the Act , I conclude that the post- election conduct was governed by the same antiunion mo- tivation as dictated by Phipps ' preelection pronouncement. The "pendency" of the election during the period after June 26 did not prevent Respondent from instituting the wage differential . The Gates Rubber Company, supra; Mc- Cormick Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242 (1962).4 This is not a case wherein the Union , through 3 It is not legally significant that rumors concerning the night -shift differ- ential may have abounded or that some employees may already have learned of the earlier favorable decision . The tenor of Phipps' remarks clear- ly was not consonant with a mere effort to disabuse employees of any incorrect notion that may have been circulatory concerning the night-shift differential. ° Of course , under Champion Pneumatic Machinery Co., 152 NLRB 300 (1965), issues raised by the filing of objections and of the unfair labor prac- tice charge subsequently consolidated in a complaint hearing with the objec- tions to election will remain "pending" until all appeals and litigation relat- campaign literature and propaganda , has been the moving force or advocate of a wage differential . Neither is this a case involving the grant or withholding of expected bene- fits . Cf. Champion Pneumatic Machinery Co., supra . Rather, this is a case wherein an employer reaches a decision prior to the advent of a union to grant a benefit to employees, stays his hand concerning any announcement relating to the decision or benefit until the very end of the election, and then levies blame upon the Union for the "loss" or nonaccrual of the benefit . Having made the first authorita- tive announcement revealing the existence of the wage dif- ferential decision and, through the statement of Phipps, having imputed to the Union the responsibility for block- ing the implementation of the decision , Respondent may not now reasonably contend that postelection consider- ations of neutrality and sensitivity to the free and untram- meled choice of employees in any future election precludes positive action with respect to the wage differential. More- over , in finding, as I do , that Respondent acted in a man- ner violative of the Act by failing to implement its wage decision , I note that the record fails to support the Respondent's contention that implementation was initially intended to be merely postponed until after the election. There is no evidence of any attempt by Respondent prior to or following the election to seek further council on the legality of a postelection implementation of the decision .5 On the record as'a whole , I find Phipps' statement of June 25 and the postelection withholding of the wage differen- tial benefit were cut from the same pattern and form the same integral design . Contrary to Respondent , I further find that its postelection failure to implement the wage dif- ferential decision violated Section 8(a)(1) and (3) of the Act. McCormick Longmeadow Stone Co., Inc., supra; see also J. M. Baiter Co., Inc. d/b/a Jaison 's, 212 NLRB 1 (1974); cf. The Singer Company, Friden Division, supra; Heckethorn Manufacturing Co., 208 NLRB 302 (1974); Am- box, Incorporated, 146 NLRB 1520 ( 1964). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above , have a close, inti- mate , and substantial relation to trade , traffic , and com- merce among the several States , and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to ing thereto have run their course. This is not to find that Respondent would have necessarily been insulat- ed from Board sanctions merely by acting pursuant to legal advice. What is shown by Respondent's failure to seek guidance is a closed mind on the entire issue of wage differential effectuation , once the Union entered the picture. 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Colorado Seminary (University of Denver) is an em- ployer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Office and Professional Employees International Union, Local No . 5, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By stating to employees during the course of a con- vened meeting prior to a pending representation election that an approved wage differential to unit employees would not take effect because of the pendency of the union election ; and by thereafter failing to implement the deci- sion, Respondent engaged in conduct in violation of Sec- tion 8(a)(1) and (3) of the Act, and interfered with the employees' free choice of a bargaining representative, re- quiring the setting aside of the June 26 election in Case 27-RC-4794. 4. The aforesaid unfair labor practices and conduct af- fect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 Respondent, Colorado Seminary (University of Denver), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Announcing the withholding of a night-shift wage 6 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102 .48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions and Order, and all objections thereto shall be deemed waived for all purposes. differential to employees and failing thereafter to imple- ment the decision to grant the night-shift wage differential for the purpose of influencing employees with respect to union activity, affiliation, assistance, or designation. (b) In any like or related manner, interfering with, re- straining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Office and Professional Employees International Union, Local No. 5, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Post at its Denver, Colorado, campus at an appropri- ate place proximate to employee work areas, including places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional Director for Region 27, after being duly signed by a representative of the Respondent, shall be posted by Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 27, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the election in Case 27- RC-4794 be set aside , and that the Regional Director schedule an election to be held at such time as he, in his independent judgment, is satisfied that the effects of Respondent's unfair labor practices shall have been effec- tively dissipated. r In the event the Board 's 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."