Niagara University

National Labor Relations Board - Board Decisions

Nov 17, 1976

226 N.L.R.B. 918 (N.L.R.B. 1976)

918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Niagara University and Niagara University Lay
Teachers Association . Case 3-CA-6544
November 17, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
Upon a charge filed on May 7, 1976, by Niagara
University Lay Teachers Association, herein called
the Union, and duly served on Niagara University,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 3, issued a complaint and
notice of hearing on June 7, 1976, against Respon-
dent, alleging that Respondent had engaged in and
was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5) and (1)
and 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 pro-
ceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that (1) on December 29,
1975, following a Board election in Case 3-RC-6410,
the Union was duly certified as the exclusive collec-
tive-bargaining representative of Respondent's em-
ployees in the unit found appropriate;' (2) commenc-
ing on or about April 12, 1976, Respondent
bargained directly and individually with the employ-
ees in the appropriate unit concerning rates of pay,
wages, hours of employment, and other terms and
conditions of employment by sending individual em-
ployment contracts for the 1976-77 academic year to
the employees in the appropriate unit; and (3) on or
about May 5, 1976, and May 10, 1976, and at all
times thereafter, Respondent has refused, and con-
tinues to date to refuse, to bargain collectively with
the Union as the exclusive bargaining representative,
although the Union has requested and is requesting it
to do so. On June 15, 1976, Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations in the complaint.
On July 12, 1976, counsel for the General Counsel
filed directly with the Board a motion to transfer
'Official notice is taken of the record in the representation proceeding,
Case 3-RC-6410, as the term "record" is defined in Secs 102 68 and
102 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,
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
proceeding to Board, to strike Respondent's alleged
first and second affirmative defenses, and for sum-
mary judgment and issuance of Board's Decision
and Order. Subsequently, on July 20, 1976, the Board
issued an 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 "Motion in Opposi-
tion."
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 in substance de-
nies unit appropriateness, contends that its position
thereon is supported by two recent Supreme Court
decisions, Serbian Eastern Orthodox Diocese for the
United States and Canada v. Milivojevich 2 and Roem-
er v. Board of Public Works of Maryland,3 and seeks
dismissal of the complaint based on its contention
that unit appropriateness is at issue in its pending
petition for unit clarification in Case 3-UC-104.4 In
his motion, counsel for the General Counsel in sub-
stance contends that summary judgment is appropri-
ate because the Respondent has raised no litigable
issue of fact and that resort to the Board for resolu-
tion of postelection placement issues does not entitle
an employer to refuse to bargain where, as here, the
Union has demonstrated a clear majority in an other-
wise appropriate unit. We agree.
Review of the record, including that in the repre-
sentation proceedings, Case 3-RC-6410, establishes
that, at a hearing, Respondent sought to include reli-
gious faculty in the bargaining unit. In his Decision
and Direction of Election issued October 3, 1975, the
Regional Director excluded religious faculty from
the unit, following precedent in Seton Hills and Car-
roll Manor," but allowed two nuns whose status was
not clear to vote subject to challenge. Respondent
filed a timely request for review contending, inter
2 96 S Ct 2372 (1976)
3 96 S Ct 2337 (1976)
4 A hearing was held in this case on March 12 and 15, 1976, and it is
presently pending before the Board for decision in its answer , Respondent
also relied on its motion for reconsideration and clarification of unit and
consolidation filed on April 12, 1976, as grounds for dismissal of the instant
complaint This motion was denied by the Board on July 22, 1976, as un-
timely and lacking in merit
5 Seton Hill College, 201 NLRB 1026 (1973)
6 Carroll Manor Nursing Home, 202 NLRB 67 (1973)
226 NLRB No. 154
NIAGARA UNIVERSITY
alia, that the Board's decision in Seton Hill was either
incorrect or distinguishable, and that, under Seton
Hill, religious faculty who were not members of the
order which founded the Respondent university
should be included in the unit. On November 20,
1975, the Board denied the request for review as rais-
ing no substantial issues except as to the unit place-
ment of two of the religious faculty, and amended
the Decision and Direction of Election to permit
them also to vote under challenge.
The Union won the election held on December 17,
1975, with challenged ballots insufficient to affect the
result, and, in the absence of objections to the elec-
tion or tally, was certified by the Regional Director
on December 29, 1975. On February 10, 1976, Re-
spondent filed a petition in Case 3-UC-104 seeking
clarification of the bargaining unit to include the
four faculty members who had been permitted to
vote subject to challenge. On April 12, 1976, Respon-
dent filed a motion for reconsideration and clarifica-
tion of unit and consolidation, seeking to consolidate
the representation and clarification proceedings and,
in substance, to relitigate the unit issues. On July 22,
1976, the Board denied Respondent's motion as un-
timely and lacking in merit, finding that it raised
only issues considered at earlier stages of the pro-
ceedings and did not present any new matter justify-
ing or warranting reconsideration of those issues at
that time.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or special
circumstances a respondent in a proceeding alleging
an 8(a)(5) violation is not entitled to relitigate issues
which were or could have been litigated in a prior
representation proceeding.'
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the 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 de-
cision 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 reject Respondent's contention raised in the
instant proceeding that the exclusion of religious fa-
culty is violative of the first amendment under recent
Supreme Court decisions. We find Roemer and Serbi-
an Eastern, supra, inapposite and we deem the in-
quiry necessary to determine whether religious facul-
' 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)
919
ty have a sufficient community of interest to be in-
cluded in the bargaining unit to be clearly distin-
guishable from the inquiry into whether the removal
and defrocking of a bishop was consistent with
church law found violative of the first amendment in
Serbian Eastern, supra. Further, we find no merit in
the contention that the complaint be dismissed be-
cause of the pendency of Case 3-UC-104. It is well
established that a pending clarification petition is not
a valid defense to the complaint since the unit place-
ment issue raised therein involves neither the basic
appropriateness of the certified unit, the Union's ma-
jority therein, nor the ability of the parties to bargain
in the certified unit. See Landis Tool Company, Divi-
sion of Litton Industries, 203 NLRB 1025 (1973);
Glen-Manor Home for the Jewish Aged, 196 NLRB
1166 (1972); The May Department Stores Company,
186 NLRB 86 (1970). We shall, accordingly, grant
the Motion for Summary Judgment.8
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a nonprofit, 4-year university, incorporated
under the education laws of the State of New York.
During the past year, Respondent had gross revenues
in excess of $1 million exclusive of any restrictions
on revenues which, because of limitations placed by
the grantor, would not be available for use as general
operating expenses. Also during the same period of
time, Respondent at its New York location received
goods and materials valued in excess of $50,000,
which goods and materials were shipped to Respon-
dent in New York State directly from points 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 assertjuris-
diction herein.
ll. THE LABOR ORGANIZATION INVOLVED
Niagara University Lay Teachers Association is a
labor organization within the meaning of Section
2(5) of the Act.
8 In view of our determination herein, we find it unnecessary to pass on
the General Counsel's motion to strike Respondent' s affirmative defenses
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective -bargaining
purposes within the meaning of Section 9(b) of the
Act.
All full-time lay teaching faculty including de-
partment chairmen employed by the Employer
at its Niagara University, New York, location,
excluding office clerical employees, religious fa-
culty, part-time faculty, ROTC faculty, adminis-
trators , all other professional employees , guards
and supervisors as defined in the Act.
2. The certification
On December 17, 1975, a majority of the employ-
ees of Respondent in said unit, in a secret ballot elec-
tion conducted under the supervision of the Regional
Director for Region 3, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent. The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on December 29, 1975, and the
Union continues to be such exclusive representative
within the meaning of Section 9(a) of the Act.
B. Respondent's Refusal To Bargain
Commencing on or about April 12, 1976, Respon-
dent bargained directly and individually with the em-
ployees in the above-described unit concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment by sending individual
employment contracts for the 1976-77 academic year
to the unit employees in derogation of the status of
the Union as the exclusive bargaining representative
of the employees in the certified unit. Commencing
on or about May 3, 1976, and at all times thereafter,
the Union has requested the Respondent to bargain
collectively with it as the exclusive collective-bar-
gaining representative of all the employees in the
above-described unit. Commencing on or about May
5, 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 ex-
clusive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that the Respondent has, on
April 12, 1976, and May 5, 1976, and at all times
thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employ-
ees in the appropriate unit, and that, by such refusal,
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 opera-
tions described in section I, above, have a close, inti-
mate, 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 commerce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing 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 ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the appro-
priate unit will be accorded the services of their se-
lected 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); Bur-
nett 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. Niagara University is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Niagara University Lay Teachers Association is
a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time lay teaching faculty including de-
partment chairmen employed by the Employer at its
Niagara University, New York, location, excluding
office clerical employees, religious faculty, part-time
NIAGARA UNIVERSITY 921
faculty, ROTC faculty, administrators, all other pro-
fessional employees, guards and supervisors as de-
fined 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 December 29, 1975, the above-named la-
bor 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 April 12, 1976, and
May 5, 1976, 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 practices within the meaning of Section 8(a)(5)
of the Act.
6. By the aforesaid refusal to bargain, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
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 mean-
ing of Section 8(a)(1) 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 Re-
lations Board hereby orders that the Respondent, Ni-
agara University, New York, 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 con-
ditions of employment with Niagara University Lay
Teachers Association as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate unit:
All full-time lay teaching faculty including de-
partment chairmen employed by the Employer
at its Niagara University, New York, location,
excluding office clerical employees, religious fa-
culty, part-time faculty, ROTC faculty, adminis-
trators, all other professional employees, guards
and supervisors as defined in the Act.
(b) Offering, soliciting, and inducing its employees
to enter into individual contracts of employment
with Respondent in derogation of the Niagara Lay
Teachers Association's status as the exclusive bar-
gaining representative of the employees in the afore-
said appropriate unit.
(c) 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 apprpriate 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 its Niagara University, New York, lo-
cation copies of the attached notice marked "Appen-
dix." 9 Copies of said notice, on forms provided by
the Regional Director for Region 3, after being duly
signed by Respondent's representative, shall be post-
ed 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 3, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
9In 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 Niag-
ara Lay Teachers Association as the exclusive
representative of the employees in the bargain-
ing unit described below.
WE WILL NOT offer, solicit, or induce our em-
ployees to enter into individual contracts of em-
ployment with Respondent in derogation of the
Niagara Lay Teachers Association's status as
the exclusive bargaining representative of the
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the bargaining unit described be-
low.
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 the
above-named Union, as the exclusive represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 lay teaching faculty including
department chairmen employed by the Em-
ployer at its Niagara University, New York,
location, excluding office clerical employees,
religious faculty, part-time faculty, ROTC
faculty, administrators, all other professional
employees, guards and supervisors as defined
in the Act.
NIAGARA UNIVERSITY