Pennsylvania Interscholastic Athletic Association, Inc.

National Labor Relations Board - Board DecisionsJan 26, 2018

366 NLRB No. 10 (N.L.R.B. 2018)

366 NLRB No. 10 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Pennsylvania Interscholastic Athletic Association, Inc. and Office and Professional Employees In- ternational Union, AFL–CIO. Case 06–CA– 175817 January 26, 2018 DECISION AND ORDER BY CHAIRMAN KAPLAN AND MEMBERS PEARCE AND MCFERRAN This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on May 9, 2016, and an amended charge filed on August 25, 2017, by Office and Professional Employees International Union, AFL–CIO (the Union), the General Counsel issued the complaint on August 29, 2017, alleging that Pennsylva- nia Interscholastic Athletic Association, Inc. (the Re- spondent) has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to recognize and bargain with it following the Union’s certification in Case 06– RC–152861.1 (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(d). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On September 18, 2017, the General Counsel filed a Motion for Summary Judgment. On September 20, 2017, the Board issued an order transferring the proceed- ing to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment The Respondent admits its refusal to bargain, but con- tests the validity of the Union’s certification of repre- sentative on the basis of its contentions, raised and re- jected in the underlying representation proceeding, that the lacrosse officials in the bargaining unit are independ- 1 On July 11, 2017, the Board (Members Pearce and McFerran; then-Chairman Miscimarra dissenting) affirmed the Regional Director on review and found that the lacrosse officials in the bargaining unit are “employees” under Sec. 2(3) of the Act, rather than independent con- tractors. 365 NLRB No. 107, slip op. at 1 (2017). The Board denied review in all other respects. Id., slip op. at 1 fn. 2. ent contractors rather than “employees” under Section 2(3) of the Act, that the Respondent is a “political subdi- vision” rather than an “employer” under Section 2(2) of the Act, and that the bargaining unit is not an appropriate unit inasmuch as an election was conducted among em- ployees when they were not actually officiating games.2 All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent has been a non- profit organization with an office and place of business in Mechanicsburg, Pennsylvania, whose primary purpose is providing uniformity of standards in the interscholastic athletic competitions of its member schools in the Com- monwealth of Pennsylvania, including providing the member schools access to its pool of registered sports officials. In conducting its operations annually, the Respondent purchases and receives at its Mechanicsburg, Pennsylva- nia facility goods and materials valued in excess of $50,000 directly from points outside the Commonwealth of Pennsylvania. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 2 However, the Respondent admits that its refusal to bargain was de- signed to “obtain judicial review of the certification decision in [Case] 06–RC–152861” and that it “does not oppose the General Counsel’s Motion for Summary Judgment.” 3 Chairman Kaplan did not participate in the underlying representa- tion proceeding. He agrees with his colleagues that summary judgment must be granted because the Respondent has not raised any litigable issue in this unfair labor practice proceeding. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the mail-ballot representation election held from August 24, 2015, to September 15, 2015, the Union was certified on September 25, 2015, as the exclusive collective-bargaining representative of the employees in the following appropriate unit: All registered sports officials employed by Pennsylva- nia Interscholastic Athletic Association (“PIAA”) who officiate at PIAA-sponsored boys and girls lacrosse games in the geographic areas of Pennsylvania desig- nated as “District VII” and “District VIII” by the PIAA constitution; excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act, and all other employees. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain By letter dated November 5, 2015, the Union request- ed that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit employees. Since November 11, 2015, the Re- spondent has failed and refused to recognize and bargain with the Union. By letters dated July 31 and August 16, 2017, the Un- ion renewed its request that the Respondent recognize and bargain with it as the exclusive collective-bargaining representative of the unit employees. By letter dated August 18, 2017, and continuing to date, the Respondent has failed and refused to recognize and bargain with the Union. We find that the Respondent’s conduct constitutes an unlawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since November 11, 2015, and August 18, 2017, respectively, to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Pennsylvania Interscholastic Athletic Asso- ciation, Inc., Mechanicsburg, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Office and Professional Employees International Union, AFL–CIO (the Union) as the exclusive collective- bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All registered sports officials employed by Pennsylva- nia Interscholastic Athletic Association (“PIAA”) who officiate at PIAA-sponsored boys and girls lacrosse games in the geographic areas of Pennsylvania desig- nated as “District VII” and “District VIII” by the PIAA constitution; excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act, and all other employees. (b) Within 14 days after service by the Region, post at its Mechanicsburg, Pennsylvania facility, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- 4 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOC. 3 gion 6, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since November 11, 2015. (c) Within 21 days after service by the Region, file with the Regional Director for Region 6 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. January 26, 2018 ______________________________________ Marvin E. Kaplan, Chairman ______________________________________ Mark Gaston Pearce, Member ______________________________________ Lauren McFerran, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT fail and refuse to recognize and bargain with Office and Professional Employees International Union, AFL–CIO (the Union) as the exclusive collective- bargaining representative of our employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the fol- lowing appropriate bargaining unit: All registered sports officials employed by Pennsylva- nia Interscholastic Athletic Association (“PIAA”) who officiate at PIAA-sponsored boys and girls lacrosse games in the geographic areas of Pennsylvania desig- nated as “District VII” and “District VIII” by the PIAA constitution; excluding all office clerical employees and guards, professional employees and supervisors as defined in the Act, and all other employees. PENNSYLVANIA INTERSCHOLASTIC ATHLETIC ASSOCIATION, INC. The Board’s decision can be found at www.nlrb.gov/case/06-CA-175817 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.