Trustees of Boston University

National Labor Relations Board - Board Decisions

Mar 1, 1979

240 N.L.R.B. 1104 (N.L.R.B. 1979)

1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trustees of Boston University and Local 925, Service
Employees International Union, AFL-CIO. Case
I-CA- 15031
March 1, 1979
DECISION AND ORDER
BY MEMBERS JENKINS. MURPHY. AND TRUESDALI..
Upon a charge filed on October 4, 1978, by Local
925, Service Employees International Union, AFL-
CIO, herein called the Union, and duly served on
Trustees of Boston University, herein called Respon-
dent, the General Counsel of the National Labor Re-
lations Board, by the Regional Director for Region I.
issued a complaint on November 3, 1978, against Re-
spondent, alleging that Respondent had engaged in
and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(5) and
(I) 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 Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the com-
plaint alleges in substance that on August 21, 1978.
following a Board election in Case -RC-15469 the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;2 and that, commenc-
ing on or about September 14 and 22, 1978, 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, and that since on or about September 22,
1978, Respondent has failed and refused to provide
the Union with a list of employees in the appropriate
unit, their addresses, dates of hire, rates of pay, their
classifications and job descriptions, information as to
fringe benefits and work rules, and a list of other job
titles within the same job grades as unit employees.
On November 20, 1978, Respondent filed its answer
to the complaint admitting in part, and denying in
part, the allegations in the complaint.
Respondent's motion to consolidate this complaint with the complaint
in ICase I CA 15146 is denied as lacking in merit.
Official notice is taken of the record in the representation proceeding.
Case I RC -15469, as the term "record" is defined in Secs. 102.68 ind 10)2
.69 (g) of the Board's Rules and Regulations. Series 8. as amended. See 1. '1
Electrossterm, Inc. 166 NI.RB 938 (1967), enfd. 388 F.2d 683 (4th (ir.
1968): Golden Age Beverage (o., 167 NL.RB ISI (1967). enfd. 415 1F 2d 26
(5th Cir. 1969); Interip'e Co. v. Penellh, 269 F.Supp. 573 (D.C.Va. 1967):
Follett Corp. 164 NLRB 378 (1967). enfd. 397 F.2d 91 (7th ('ir. 1968): Sec.
9(d) of the NLRA, as amended.
240 NLRB No. 143
On December II1, 1978, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on December 27,
1978, the Board issued an order transferring the pro-
ceeding to the Board and a Notice To Show Cause
why the General Counsel's Motion for Summary
Judgment should not be granted. Respondent there-
after filed a response to Notice To Show Cause.
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 attacks the va-
lidity of the Union's certification on the grounds that
the unit certified herein is inappropriate for purposes
of collective bargaining, and maintains that therefore
it has not committed the unfair labor practices al-
leged in the complaint. It further asserts that it now
possesses "newly discovered evidence" that was un-
available at the time of the hearing in the underlying
representation case; namely, that as a result of a
memorandum issued by Respondent on January 18,
1978. the authority of the university librarian has
been broadened to the extent that he is now in charge
of the entire library system of Boston University in-
cluding the libraries of the Schools of Law, Theology,
and Medicine, the employees of which were not in-
cluded in the certified unit: that, further, the libraries
of Respondent are not centralized on both a person-
nel and operational basis, as exemplified by the de-
velopment since January 18, 1978, of a univer-
sitywide catalogue system, the establishment of
Mugar Memorial Library as a universitywide storage
facility, the interchange of equipment on a univer-
sitywide basis, and the temporary transfer of employ-
ees among the libraries. Respondent also contends
that the university librarian has implemented a uni-
versitywide appointment and promotion system for
professional librarians and has submitted a recom-
mendation for a universitywide salary increase for all
professional librarians. The General Counsel con-
tends that Respondent raises no issues which were
not previously litigated nor does it raise issues which
would warrant a hearing before the Board.3 We agree
In its answer to the complaint. Respondent denies the allegations of the
refusal to bargain. However, attached to the General Counsel's Motion for
Sunrm;ar? Judgment are letters from the Union to Respondent dated August
29, 1978, and September 15. 1978, in which specified information is sought
so that collective bargaining can begin, and a letter from Respondent to the
Inion dated September 22. 1978. in which Respondent refused to provide
TRUSTEES OF BOSTON UNIVERSITY 1105
with the General Counsel.
Our review of the record herein, including the rec-
ord in Case I-RC-15469, indicates that on Novem-
ber 17, 1977, the Union filed a petition in which it
sought to represent certain of Respondent's employ-
ees. A hearing on that petition was held on Decem-
ber 9, 1977, and January 9, 12. and 19, 1978. On
February 2, 1978, the proceeding was transferred to
the Board. On July 14. 1978. the Board issued its
Decision and Direction of Election 4 directing that an
election be held in the following appropriate unit:
All professional nonsupervisory librarians in
the classification of Librarian I. Librarian II.
and Catalogue Coordinator employed at the
Mugar Memorial Library and the libraries of
Astronomy, Educational Resources, Chemistry.
Biology and Physics, but excluding all other em-
ployees, guards and supervisors as defined in the
Act.
Thereafter, an election was held on August II,
1978. The tally of ballots showed I votes cast for the
Union and 7 against. No objections were filed. As a
result of the election, the Regional Director issued a
Certification of Representative on August 21. 1978,
certifying the Union as the exclusive collective-bar-
gaining representative in the appropriate unit.
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
a violation of Section 8(a)(5) is not entitled to reliti-
gate issues which were or could have been litigated in
a prior representation proceeding.5
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or pre-
viously 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.6 We therefore find
the Union with the requested information. asserting the nalidlts of the
certification and adding that "the course we are taking is one pro ded for
by law to obtain court review of a National Labor Relations Board determl-
nation." We find that the request for information for purposes of collective
bargaining in the letter the Union sent to Respondent on August 29. 1978,
constitutes a request to bargain and that Respondent's letter of refusal on
September 22. 1978 coupled ith a complete absence of communicaion
thereafter constitutes a refusal by Respondent to bargain. See Rod-Rii (or-
poralion. 171 NLRB 922. 923-924 1968). Accordingl', since Respondent
has submitted nothing to controvert these documents, or their contents. ae
deem this allegation of the complaint to be true Thrifi Drug, a Dision I
J.C. Penneyv Companv. Inc. 215 NLRB 259 (1974). However, in so finding
we conclude in accordance with the documents attached t the Motiln for
Summary Judgment. that Respondent's refusal to bargain first commenced
on September 22. rather than on September 14. as alleged in the complaint.
236 NLRB 1535.
See Pittsburgh Plate Glass Co . V 1 R B. 313 U S. 146 162 (1941):
Rules and Regulations of the Board. Secs 10267 f) and 102 69(c)
that Respondent has not raised any issue which is
properly litigable in this unfair labor practice pro-
ceeding. Accordingly, we grant the Motion for Sum-
mary Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FCT
I THE BSINESS OF RESPONDENT
Trustees of Boston University is a nonprofit orga-
nization, chartered by a special act of the legislature
of the Commonwealth of Massachusetts, with its
central administrative office and place of business at
147 Bay State Road. Boston. Massachusetts, where it
is engaged in the operation of a private nonprofit
educational institution. In the course and conduct of
its operations, Respondent annually derives gross
revenues for use with no restrictions in excess of $1
million and imports goods valued in excess of
$50,000 directly from points outside the Common-
wealth of Massachusetts.
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 juris-
diction herein.
II. THE LABOR ORGANIZATION INVOI.VED
Local 925, Service Employees International
Union, AFL-CIO, is a labor organization 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 constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All professional nonsupervisory librarians in
the classification Librarian I. Librarian II. and
Catalogue Coordinator employed at the Mugar
Memorial Library and the libraries of Astrono-
my. Educational Resources, Chemistry, Biology
T' he memorandum of January I8. 1978. to which Respondent refers. was
introduced into evidence and fulls considered in the underlying representa-
tion case As Io the changes since the hearing we find that even if the)
occurred. as alleged b Respondent, the) raise no issue as to the alidity of
the certificalon and therefore do not warrant a denial of General Counsel's
notnion herein
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Physics, but excluding all other employees.
guards and supervisors as defined in the Act.
2. The certification
On August 11, 1978, a majority of the employees
of Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 1, designated the Union as their
representative for the purpose of collective bargain-
ing with Respondent. The Union was certified as the
collective-bargaining representative of the employees
in said unit on August 21, 1978, and the Union con-
tinues 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 August 29 and Septem-
ber 15, 1978, and at all times thereafter, the Union
has requested Respondent to bargain collectively
with it as the exclusive collective-bargaining repre-
sentative of all the employees in the above-described
unit, and to supply it with certain requested informa-
tion which is relevant for the purpose of collective
bargaining. Commencing on or about September 22,
1978, and continuing at all times thereafter to date,
Respondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit and has refused to supply the
information which the Union has requested.
Accordingly, we find that Respondent has, since
September 22, 1978, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit and to supply the Union with the in-
formation it requested for the purpose of collective
bargaining, 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 (I) of
the Act.
IV. TIE EFFECT OF THE UNFAIR LABOR PRACII(.S I P()ON
C(OMMER(C'
The activities of Respondent set forth in section
Ill, above, occurring in connection with its opera-
tions described in section 1. 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.
,\ 111F RMEDY
laving found that Respondent has engaged in and
is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and () 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.
We shall also order Respondent to provide the infor-
mation requested by the Union.
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 Pouhrlv Company, Inc., 136
NLRB 785 (1962): Commerce CoCompany d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Bur-
nett (onstruction Companly. 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:
CON(CI[ SIONS OF LAW
1. Trustees of Boston University is an employer
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 925, Service Employees International
Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All professional nonsupervisory librarians in
the classification of Librarian , Librarian 11, and
Catalogue Coordinator employed at the Mugar
Memorial Librarv and the libraries of Astronomy,
Educational Resources, Chemistry, Biology, and
Physics, but excluding all other employees, guards,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
4. Since August 21, 1978, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the afore-
said appropriate unit for the purpose of collective
bargaining within the meaning of Section 9 (a) of the
Act.
5. By refusing on or about September 22, 1978.
and at all times thereafter to bargain collectively with
the above-named labor organization as the exclusive
TRUSTEES OF BOSTON UNIVERSITY 1107
bargaining representative of all the employees of Re-
spondent in the appropriate unit. and by refusing to
supply the Union with information it requested for
the purpose of collective bargaining, 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.
Trustees of Boston University. Boston. Massachu-
setts, 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 con-
ditions of employment with Local 925, Service Em-
ployees International Union, AFL CIO, as the ex-
clusive bargaining representative of its employees in
the following appropriate unit:
All professional nonsupervisory librarians in
the classifications of Librarian I, Librarian I1,
and Catalogue Coordinator employed at the
Mugar Memorial Library and the libraries of
Astronomy, Educational Resources, Chemistry,
Biology and Physics, but excluding all other em-
ployees, guards and supervisors as defined in the
Act.
(b) Refusing to supply the above-named labor or-
ganization, upon request, with information relevant
and necessary for the purpose of collective bargain-
ing.
(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 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) Upon request. supply the above-named labor
organization with a list of employees in the appropri-
ate unit, their addresses, dates of hire, rates of pay.
their classifications and job descriptions. information
as to fringe benefits and work rules, and a list of
other job titles within the same job grades as unit
employees.
(c) Post at its Mugar Memorial Library and its li-
braries of Astronomy, Educational Resources.
Chemistryv. Biology, and Physics, copies of the at-
tached notice marked "Appendix." Copies of said
notice, on forms provided by the Regional Director
for Region 1, after being duly signed by Respon-
dent's representative, shall he posted by Respondent
immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places. including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region I. in
writing. within 20 days from the date of this Order.
what steps have been taken to comply herewith.
In he eeni thal this Order i enforced hŽ a Judgment of a nited
Slie, ( Court of Appeals. the %, ordi in the notice reading "Posted h Order
of the .i1onil Ilhor Relations Board" shall read Posted Pursuant to
Judgmenl of the I nted Siales ( ourt of Appeals -lforcing ean Order of the
National. I .lhor Relations Board"
APPENDIX
Noi(Fi To EPLOYES
POSIrI) BY ORI)IR OF TIHE
NAIIO(NA L BOR REI.IA ONS BOARD
An Agency of the United States Government
Wt-. A[i. NOIt refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with Local
925. Service Employees International Union.
AFL CIO, as the exclusive representative of the
employees in the bargaining unit described be-
low.
WE. VIlLL Not refuse to supply the above-
named labor organization, upon request, with
information relevant and necessary for the col-
lective bargaining.
Wu wnIlt NOT in an ' 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.
Wi wi.. upon request, bargain with the
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 professional nonsupervisory librarians in
the classifications of Librarian I, Librarian II,
and Catalogue Coordinator employed at the
Mugar Memorial Library and the libraries of
Astronomy, Educational Resources, Chemis-
try, Biology and Physics, but excluding all
other employees, guards and supervisors as
defined in the Act.
WE WILL. upon request, supply the above-
named labor organization with a list of employ-
ees in the appropriate unit, their addresses, dates
of hire, rates of pay, their classifications and job
descriptions, information as to fringe benefits
and work rules, and a list of job titles within the
same job grades as unit employees.
TRUSTEES OF BOSTON UNIVERSITY