Faileigh Dickinson University

National Labor Relations Board - Board Decisions

Jan 7, 1981

253 N.L.R.B. 1049 (N.L.R.B. 1981)

FAIRI.EIGH DICKINSON UNIVERSITY
Fairleigh Dickinson University and Office & Profes-
sional Employees' International Union, Local
153, AFL-CIO. Case 22-CA-10154
January 7, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESALE
Upon a charge filed on July 14, 1980, by Office
& Professional Employees' International Union,
Local 153, AFL-CIO, herein called the Union, and
duly served on Fairleigh Dickinson University,
herein called Respondent, the General Counsel of
the National Labor Relations Board, by the Re-
gional Director for Region 22, issued a complaint
on July 29, 1980, against Respondent, 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 complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on January 31,
1980, following a Board election in Case 22-RC-
7931, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about June 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 bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. The complaint also alleges
that on June 16, 1980, Respondent unilaterally
granted a wage increase to employees in the unit.
On August 4, 1980, Respondent filed its answer to
the complaint admitting in part, and denying in
part, the allegations in the complaint.
On September 29, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 6,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. On Novem-
I Official notlic is taken of the record in the represel;altion proceed-
ing, Case 22 RC 731. as the ternl "record" is definmd in Sees 11)26
and 102 9(g) of the Board's Rules and Rcgll;ations. Series X. as s amelnded
See L Il E clrotvemts., Inc., 166 NI.BRIB 1) 11h67), cnfid 3 g 2d 68I
(4th Cir t1 8): (;iodcn A.t IRevragc ('o, 167 NL.RB 151 (1967). entfd 415
F2d 26 (5th Cir I)h69); Inlerrrvpe ('o X Penllio. 2 F Supp 571
(DCVa 16h7). Ftol/,tt Corp.. 164 NL.RI 378 (19671, etd 3q7 F: 21 Q
(7th Cir 1'68); Sec (d) of the NI RA, as amended
ber 3, 1980, Respondent filed a letter in reply to
the General Counsel's motion.
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 and affirmative defenses to the
complaint, Respondent maintains that certification
of the Union was invalid. Respondent also denies
that the Union requested bargaining, but admits
that it refused to bargain; however, it claims that
this refusal did not violate Section 8(a)(5) and (1)
of the Act. Respondent also admits the grant of the
wage increase alleged in the complaint, but denies
that its action in granting the increase was unlaw-
ful. Specifically, Respondent contends that the
Union was not validly certified as the collective-
bargaining representative of Respondent's employ-
ees because the Regional Office of the Board
which conducted the election destroyed the labora-
tory conditions required by the Board for a fair
election and because the Union made various mis-
representations during the campaign which had a
significant impact upon the election at a time
which did not provide Respondent an adequate op-
portunity to reply. Respondent also argues that the
Regional Director improperly denied Respondent a
hearing, and abused his discretion by deciding the
case when several of the objections to the election
concerned actions of Board agents from his office.
In the Motion for Summary Judgment, the General
Counsel argues that a bargaining request was made
by the Union, that there are no issues requiring a
hearing, and that Respondent is attempting to reliti-
gate issues that were raised and determined by the
Board in the underlying representation case. We
agree with the General Counsel.
Our review of the record, including that in Case
22-RC-7931, reveals that, pursuant to a Decision
and Direction of Election issued by the Regional
Director, an election was held on November 16,
1979. The tally of ballots showed 267 votes cast for
Petitioner, and 250 against. Twenty-six ballots were
challenged, a sufficient number to affect the results
of the election.
On November 21, 1979, Respondent filed objec-
tions to the election, alleging that the Board de-
stroyed laboratory conditions for holding a fair
election by incorrectly stating the eligibility date
for voters on its notice of election, by stating incor-
rect polling places for two campuses on the notice,
by omitting a number of job titles from the notice,
253 NLRB No. 143
1049
DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
by failing to deliver the notices of election to Re-
spondent in sufficient time for several part-time em-
ployees to be adequately informed of the election,
by adding an additional polling place too late to
give employees adequate notice, and by allowing
an intervenor to withdraw from the election only 7
days before it took place, thus creating confusion.
Respondent filed an additional objection alleging
that the Union misrepresented its ability to insure
that employees would keep all their benefits under
a union contract. Respondent claimed that this mis-
representation was made at a time when it could
not make an effective reply, and that the statement
had a significant impact on the election.
On January 31, 1980, the Regional Director
issued a Supplemental Decision and Certification of
Representative in which Respondent's objections
were overruled in their entirety; the challenges to 9
ballots were sustained; the challenges to 2 ballots
with markings were overruled and these ballots
were counted as 2 additional votes cast for Peti-
tioner; and the challenges to 15 ballots were over-
ruled. As the 15 overruled challenges could not
affect the results, the Union was certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the appropriate unit. On
February 8, 1980, Respondent filed with the Board
a request for review of the Regional Director's
Supplemental Decision and Certification of Repre-
sentative. The Board denied Respondent's request
for review on April 3, 1980.
Respondent denies that the Union requested bar-
gaining. However, we note that Respondent, in an
April 18, 1980, letter to the Union's business repre-
sentative, acknowledges receipt of the Union's
letter of April 7, 1980, in which it was stated that
the Union was "ready to negotiate." Furthermore,
on June 13, 1980, Respondent's attorney sent an-
other letter to the Union's representative, which
stated unequivocally, "Please be advised that solely
to get the questions presented by the University in
this case before a court law, Fairleigh Dickinson
University hereby refuses to negotiate or bargain
with your Union on behalf of the employees within
the certified unit." Thus, even if Respondent had
not acknowledged the Union's April 7 letter re-
questing bargaining, the Respondent's June 13
letter would have rendered any subsequent demand
futile. The Board has often held that, in such cir-
cumstances, a request to bargain is not a prerequi-
site to the finding of an 8(a)(5) violation. Richard-
son Chemical Company, Allied Kelite Products Divi-
sion, 222 NLRB 5, 6 (1976); Burton-Dixie Corpora-
tion, 103 NLRB 880 (1953), enfd. 210 F.2d 199
(10th Cir. 1954); Old Town Shoe Company, 91
NLRB 240 (1950). Thus, on June 13, 1980, Re-
spondent refused, and continues to refuse, to honor
the certification and bargain with the Union.
Respondent admits that it granted a wage in-
crease on June 16, 1980, but denies that this action
violated the Act because the Union was improperly
certified. It appears that, except for the denial that
the Union requested bargaining, Respondent is at-
tempting to raise in this proceeding issues that
were raised and determined in the underlying rep-
resentation case.
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."
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:
FIN)IN(;S Ol: FACT
I. THEI BUSINESS 01: RESPONDENT
Respondent is a nonprofit New Jersey corpora-
tion which is engaged in the operation of an inde-
pendent university. Respondent maintains its princi-
pal office and one of its main educational facilities
at Rutherford, New Jersey, and has maintained and
operated other educational facilities at Florham
Park, Madison, Teaneck, Hackensack, and Wayne,
New Jersey. In the course and conduct of its busi-
ness, Respondent annually derives gross revenues
from all sources exceeding $1 million.
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.
' See Pitthurgh Plate (laso C'o v l. R.B., 3 S 14,h, 162 (1941):
Rule and Rcgulallions oif Ihe IH.ard. Se'.. 12 h7(0 and 102
6 9
(c1
1050
FAIRLEIGH DICKINSON UNIVERSITY
II. THE LABOR ORGANIZATION INVOL.VED
Office & Professional Employees' International
Union, Local 153, AFL-CIO, is a labor organiza-
tion 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 and regular part-time office, cleri-
cal and secretarial employees employed at Re-
spondent's Rutherford, Florham-Madison, Tea-
neck-Hackensack, and Wayne locations, in-
cluding athletic department employees and
technical employees, but excluding all nurses,
technologists, professional employees, part-
time employees employed less than 16 hours
per week, confidential employees, managerial
employees, guards, and all supervisors as de-
fined in the Act, and all other employees.
2. The certification
On November 16, 1979, a majority of the em-
ployees of Respondent in said unit, in a secret-
ballot election conducted under the supervision of
the Regional Director for Region 22, designated
the Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on January 31, 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 April 7, 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
the employees in the above-described unit. Com-
mencing on or about June 13, 1980, and continuing
at all times thereafter to date, Respondent has re-
fused, and continues to refuse, to recognize and
bargain with the Union as the exclusive representa-
tive for collective bargaining of all employees in
said unit.
Accordingly, we find that Respondent has, since
June 13, 1980, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1)
of the Act.
C. Additional Violation of Section 8(a)(5) and
(I) of the Act
On June 16, 1980, Respondent granted a wage
increase to employees in the above unit without
notifying or bargaining with the Union concerning
said wage increase. Accordingly, we also find that,
by unilaterally granting its employees this wage in-
crease, Respondent 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. 3
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;
S The General Counsel has requested that the Board additionally pro-
vide extraordinary remedial relief by ordering Respondent to furnish the
Union with a list of names and addresses of its employees and to maintain
a current list for a period of I year from the date Respoxndent commences
to bargain, and to afford the Union reasonable use of its bulletin board,
during the period of negotiations for the posting of union notices and
other literature We find no unusual circumstances here which warrant
the extraordinary remedies requested by the General Counsel
1051
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
1. Fairleigh Dickinson University is an employer
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Office & Professional Employees' Internation-
al Union, Local 153, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All full-time and regular part-time office, cleri-
cal and secretarial employees employed at Re-
spondent's Rutherford, Florham-Madison, Tea-
neck-Hackensack, and Wayne locations, including
athletic department employees and technical em-
ployees, but excluding all nurses, technologists,
professional employees, part-time employees em-
ployed less than 16 hours per week, confidential
employees, managerial employees, guards, and all
supervisors as defined in the Act, and all other em-
ployees, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since January 31, 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 June 13, 1980, and at
all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) of the
Act.
6. By unilaterally granting a wage increase on
June 16, 1980, Respondent has engaged in, and is
engaging in, unfair labor practices within the mean-
ing of Section 8(a)(5) of the Act.
7. By the acts described in section III above, Re-
spondent has interfered with, restrained, and co-
erced, and is interfering with, restraining, and co-
ercing, employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and there-
by has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(l) of
the Act.
8. 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,
Fairleigh Dickinson University, Rutherford, New
Jersey, 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 Office & Profes-
sional Employees' International Union, Local 153,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All full-time and regular part-time office, cleri-
cal and secretarial employees employed at Re-
spondent's Rutherford, Florham-Madison, Tea-
neck-Hackensack, and Wayne locations, in-
cluding athletic department employees and
technical employees, but excluding all nurses,
technologists, professional employees, part-
time employees employed less than 16 hours
per week, confidential employees, managerial
employees, guards, and all supervisors as de-
fined in the Act, and all other employees.
(b) Unilaterally granting wage increases to its
represented employees in the appropriate unit with-
out prior consultation and bargaining with their
representative. Nothing herein shall be construed as
requiring Respondent to revoke any wage in-
creases.
(c) 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 its Rutherford, Florham-Madison,
Teaneck-Hackensack, and Wayne, New Jersey,
facilities copies of the attached notice marked "Ap-
pendix." 4 Copies of said notice, on forms provided
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 United States Court o, Appeals Enforcing an
Order of the National Labor Relations Board."
1052
FAIRLEIGH DICKINSON UNIVERSITY
by the Regional Director for Region 22, after
being duly signed by Respondent's representative,
shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(c) Notify the Regional Director for Region 22,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
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 Office & Professional Employees' Inter-
national Union, Local 153, AFL-CIO, as the
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT unilaterally grant wage in-
creases to our employees in the appropriate
unit, described below, without prior consulta-
tion and bargaining with their representative.
Nothing herein shall be construed as requiring
any wage increase heretofore granted to be re-
voked.
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 WIL., upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full-time and regular part-time office,
clerical and secretarial employees employed
at the Employer's Rutherford, Florham-
Madison, Teaneck-Hackensack, and Wayne
locations, including athletic department em-
ployees and technical employees, but ex-
cluding all nurses, technologists, professional
employees, part-time employees employed
less than 16 hours per week, confidential
employees, managerial employees, guards,
and all supervisors as defined in the Act,
and all other employees.
FAIRLEIGH DICKINSON UNIVERSITY
1053