Gordon Technical High School

National Labor Relations Board - Board Decisions

May 17, 1977

229 N.L.R.B. 708 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gordon Technical High School Directed by the
Congregation of the Resurrection and Gordon
Technical High School Education Association, an
Affiliate of the Illinois Education Association and
the National Education Association. Case 13-CA-
16011
May 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
Upon a charge filed on November 23, 1976, by
Gordon Technical High School Education Associa-
tion, an Affiliate of the Illinois Education Associa-
tion and the National Education Association, herein
called the Union, and duly served on Gordon
Technical High School Directed by the Congregation
of the Resurrection, herein called the Respondent,
the General Counsel of the National Labor Relations
Board, by the Acting Regional Director for Region
13, issued a complaint and notice of hearing on
December 29, 1976, 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, 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 September 20,
1976, following a Board election in Case 13-RC-
14012, the Union was duly certified as the exclusive
collective-bargaining representative of Respondent's
employees in the unit found appropriate; ' and that,
commencing on or about November 18, 1976, and at
all times thereafter, Respondent has refused, and
continues to date to refuse, to bargain collectively
with the Union as the exclusive bargaining represen-
tative, although the Union has requested and is
requesting it to do so. On January 6, 1977, Respon-
dent filed its answer to the complaint admitting in
part, and denying in part, the allegations in the
complaint and requesting that the complaint be
dismissed.
On February 18, 1977, counsel for the General
Counsel filed directly with the Board a Motion To
Transfer Proceedings to the Board and Motion for
Summary Judgment, with exhibits attached. Subse-
quently, on February 25, 1977, the Board issued an
i Official notice is taken of the record in the representation proceeding,
Case 13-RC-14012, as the term "record" is defined in Secs. 102.68 and
1
0
2.69(g) of the Board's Rules and Regulations, Series 8, as amended. See
LTV Electrosystems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4.
229 NLRB No. 102
order transferring the proceeding 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
Notice To Show Cause entitled, "Response to
Motion to Transfer Proceedings to the Board, Cross
Motion for Summary Judgment and Motion to
Amend its Answer," along with a supporting brief.
Consequently, on March 15, 1977, counsel for the
General Counsel filed a Response to Respondent's
Cross Motion for Summary Judgment.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motions for Summary
Judgment
Respondent in its answer admits the factual
allegations contained in the complaint, but denies
that the election held in the underlying representa-
tion case was valid and thereby disputes the Acting
Regional Director's unit determination and the
validity of the certification of the Union as exclusive
bargaining representative of the employees in that
unit. In support of its Cross Motion for Summary
Judgment, Respondent argues that the Board should
decline to exercise jurisdiction over it on the ground
that assertion of jurisdiction would unduly inhibit the
exercise of religious freedom guaranteed to it under
the first Amendment to the Constitution. As an
additional ground for its motion, Respondent asserts
that the unit in the underlying representation case is
inappropriate because faculty members belonging to
a religious order are excluded and because depart-
ment chairmen are included. In her Motion for
Summary Judgment and in her response to the
Respondent's Cross Motion for Summary Judgment,
counsel for the General Counsel contends that the
issues raised by the Respondent were or could have
been litigated in the underlying representation case
and may not be relitigated herein. We agree with
counsel for the General Counsel.
Review of the record herein, including that in the
representation proceeding, Case 13-RC-14012, es-
tablishes that on March 29, 1976, the Union filed a
petition under Section 9(c) of the Act seeking
certification as the collective-bargaining representa-
tive of certain employees of the Respondent. Follow-
ing a hearing, the Acting Regional Director for
1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(C.A. 5, 1969); Intertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va., 1967);
Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C.A. 7, 1968); Sec.
9(d) of the NLRA, as amended.
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GORDON TECHNICAL HIGH SCHOOL
Region 13 issued, on May 14, 1976, a Decision and
Direction of Election. At the above-mentioned
hearing, Respondent advanced the same arguments
made herein, specifically, that the Board should
decline to assert jurisdiction over it because it is a
religious institution and that to assert jurisdiction
would be to derogate its first amendment right of
religious freedom. The Respondent also fully litigat-
ed the question of whether the petitioned-for unit
was appropriate. The evidence adduced at the
hearing indicated that, although the Respondent
required all students to attend religious education
courses, it was, in fact, a comprehensive high school
with a broad curriculum of secular subjects. Conse-
quently, the Acting Regional Director found that the
Respondent was not a completely religious institu-
tion and that its mode of operation was similar to
other high schools over which the Board has asserted
jurisdiction.2 He therefore found the Respondent to
be an Employer within the meaning of the Act. In
addition, after carefully reviewing the facts, the
Acting Regional Director found that department
chairmen are not supervisors within the meaning of
the Act and thus directed that lay department
chairmen be included in the unit.
Thereafter, on May 25, 1976, the Respondent filed
a request for review of the Acting Regional Direc-
tor's Decision. On August 3, 1976, by teletype
message, the Board denied Respondent's request for
review on the grounds that it raised no substantial
issues warranting review. It thus appears clear that
Respondent is attempting to raise issues herein which
have been raised and resolved in the prior represen-
tation case.
It is well settled that in the absence of newly
discovered or previously unavailable evidence or
special circumstances a respondent in a proceeding
alleging 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 the Respondent in this
proceeding were or could have been litigated in the
prior representation proceeding, and the Respondent
does not offer to adduce at a hearing any newly
discovered 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 the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding. We shall, accordingly,
2 See Cardinal Timothy Manning, Roman Catholic Archbishop of the
Archdiocese of Los Angeles, 223 NLRB 1218 (1976); Roman Catholic
Archdiocese of Baltimore, 216 NLRB 249 (1975); The Catholic Bishop of
Chicago, a Corporation Sole, 220 NLRB 359 (1975).
3 See Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(f) and 102.69(c).
deny the Respondent's Cross Motion for Summary
Judgment and grant the General Counsel's Motion
for Summary Judgment. 4
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a private Catholic high school for
boys located in Chicago, Illinois, is operated by the
Congregation of the Resurrection, an Illinois not-for-
profit corporation. During the past year, a represen-
tative period, the Congregation of the Resurrection
had a gross annual income in excess of $1 million
and purchased goods valued in excess of $50,000
from suppliers located within the State of Illinois,
which goods and materials originated from points
outside the State of Illinois.
We find, on the basis of the foregoing, that
Respondent 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
Gordon Technical High School Education Associ-
ation, an Affiliate of the Illinois Education Associa-
tion and the National Education Association, is a
labor organization within the meaning of Section 2(5)
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent
constitute a unit appropriate for collective-bargain-
ing purposes within the meaning of Section 9(b) of
the Act:
All lay teachers employed by the Respondent at
Gordon Technical High School, located at 3633
North California Avenue, Chicago, Illinois, in-
cluding department chairmen and part-time
teachers teaching 20 percent or more of the full-
time load; excluding faculty who are members of
a religious order, part-time faculty teaching less
4 Having denied the Respondent's Cross Motion for Summary Judg-
ment, we likewise deny, for the same reasons, the Respondent's motion to
amend its answer to deny that it is an Employer within the meaning of the
Act.
709
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than 20 percent of a full load, guards and
supervisors as defined in the Act.
2. The certification
On September 10, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret ballot
election conducted under the supervision of the
Acting Regional Director for Region 13 designated
the Union as their representative for the purpose of
collective bargaining with the Respondent. The
Union was certified as the collective-bargaining
representative of the employees in said unit on
September 20, 1976, 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 October 1, 1976, and at
all times thereafter, the Union has requested the
Respondent to bargain collectively with it as the
exclusive collective-bargaining representative of all
the employees in the above-described unit. Com-
mencing on or about November 18, 1976, and
continuing at all times thereafter to date, the
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that the Respondent has,
since November 18, 1976, and at all times thereafter,
refused to bargain collectively with the Union as the
exclusive representative of the employees in the
appropriate 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 opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing 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
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Gordon Technical High School Directed by
the Congregation of the Resurrection is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Gordon Technical High School Education
Association, an Affiliate of the Illinois Education
Association and the National Education Association
is a labor organization within the meaning of Section
2(5) of the Act.
3. All lay teachers employed by the Respondent
at Gordon Technical High School, located at 3633
North California Avenue, Chicago, Illinois, including
department chairmen and part-time teachers teach-
ing 20 percent or more of the full-time load;
excluding faculty who are members of a religious
order, part-time faculty teaching less than 20 percent
of a full load, guards and supervisors as defined in
the Act constitute a unit appropriate for the purposes
of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since September 20, 1976, 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 November 18, 1976,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the
exclusive 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.
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GORDON TECHNICAL HIGH SCHOOL
6. By the aforesaid refusal to bargain, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 7 of the Act, and thereby has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that the Respondent,
Gordon Technical High School Directed by the
Congregation of the Resurrection, Chicago, Illinois,
its officers, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with Gordon Technical
High School Education Association, an Affiliate of
the Illinois Education Association and the National
Education Association as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All lay teachers employed by the Respondent at
Gordon Technical High School, located at 3633
North California Avenue, Chicago, Illinois, in-
cluding department chairmen and part-time
teachers teaching 20 percent or more of the full-
time load; excluding faculty who are members of
a religious order, part-time faculty teaching less
than 20 percent of a full load, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise 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 under-
standing is reached, embody such understanding in a
signed agreement.
(b) Post at Gordon Technical High School,
Chicago, Illinois, copies of the attached notice
marked "Appendix." 5 Copies of said notice, on
forms provided by the Regional Director for Region
13, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent 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. 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 13, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
5 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
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 Gor-
don Technical High School Education Associa-
tion, an Affiliate of the Illinois Education
Association and the National Education Associa-
tion, as the exclusive, bargaining representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL, upon request, bargain with above-
named Union, as the exclusive representative 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 bar-
gaining unit is:
All lay teachers employed by the Respon-
dent at Gordon Technical High School,
located at 3633 North California Avenue,
Chicago, Illinois, including department
chairmen and part-time teachers teaching 20
percent or more of the full-time load;
711
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding faculty who are members of a
religious order, part-time faculty teaching
less than 20 percent of a full load, guards
and supervisors as defined in the Act.
GORDON TECHNICAL
HIGH SCHOOL DIRECTED
BY THE CONGREGATION
OF THE RESURRECTION
712