University of Rio Grande

National Labor Relations Board - Board Decisions

Apr 13, 1998

325 N.L.R.B. 642 (N.L.R.B. 1998)

642
325 NLRB No. 100
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
University of Rio Grande and United Mine Work-
ers of America, AFL–CIO, CLC. Case 9–CA–
35708
April 13, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
BRAME
Pursuant to a charge filed on February 13, 1998, the
General Counsel of the National Labor Relations
Board issued a complaint on February 18, 1998, alleg-
ing that the Respondent has violated Section 8(a)(5)
and (1) of the National Labor Relations Act by refus-
ing the Union’s request to bargain following the
Union’s certification in Case 9–RC–16906. (Official
notice is taken of the ‘‘record’’ in the representation
proceeding as defined in the Board’s Rules and Regu-
lations, Secs. 102.68 and 102.69(g); Frontier Hotel,
265 NLRB 343 (1982).) The Respondent filed an an-
swer admitting in part and denying in part the allega-
tions in the complaint and submitting affirmative de-
fenses.
On March 5, 1998, the General Counsel filed a Mo-
tion for Summary Judgment. On March 10, 1998, the
Board issued an order transferring the proceeding to
the Board and a Notice to Show Cause why the motion
should not be granted. On March 24, 1998, the Re-
spondent 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
In its answer the Respondent admits its refusal to
bargain, but attacks the validity of the certification on
the basis of the Board’s disposition of certain chal-
lenged ballots. The Respondent contends that the deci-
sion of the Region and the Board to not open and
count the ballot of Michael Snider was erroneous be-
cause he was employed as a unit employee prior to the
eligibility payroll cutoff date.
In its response to the notice, the Respondent argues
that recent findings by the Internal Revenue Service
(IRS) shed light on the eligibility of the ‘‘contracted
services’’ employees. The Regional Director’s Deci-
sion and Direction of Election found that these em-
ployees do not have sufficient community of interest
with the unit employees to warrant their inclusion in
the bargaining unit. The Respondent did not request re-
view of that decision. Thereafter, when challenges
were determinative, a hearing was held as to five de-
terminative challenges, one of whom had been a ‘‘con-
tracted service’’ employee. As to that ballot, the hear-
ing officer decided Michael Snider had been a con-
tracted service employee who was offered permanent
part-time employment after the preelection hearing but
who did not begin that work until after the eligibility
date for the election. In exceptions to the hearing offi-
cer’s report, the Respondent argued that Snider should
have been included in the unit as a contracted service
employee, a position that the Regional Director re-
jected because the Respondent did not request review
of the Decision and Direction of Election. The Re-
gional Director also held that Snider was not eligible
to vote because he began work as a permanent part-
time employee after the eligibility date. The Board de-
nied the Respondent’s request for review of that deci-
sion.
The Respondent now argues that the IRS has con-
cluded that the contract service workers are employees
and that they must be paid as employees rather than
as independent contractors. The Respondent contends
that this ruling affects their eligibility to vote and, had
they been permitted to vote, their votes could have af-
fected the outcome of the election.
The Respondent’s contention that we should reopen
the representation case because of the IRS ruling must
be rejected for three reasons. First, the IRS decision
was based on facts, viz, the employment conditions of
the contracted service employees that were well known
to the Respondent at the time of the hearing. The only
new fact arising since the representation hearing is the
IRS ruling, and such facts are not ‘‘newly discovered’’
evidence. See Telemundo de Puerto Rico, Inc. v.
NLRB, 113 F.3d 270, 278 (1st Cir. 1997), enfg. 321
NLRB 916 (1996) (‘‘facts which arise only after the
hearing has been concluded and the record closed are
irrelevant’’). Second, the Regional Director did not ex-
clude these individuals because they were not employ-
ees within the meaning of Section 2(3) of the Act.
Rather, the Regional Director assumed that status but
concluded they did not share a sufficient community of
interest with the unit employees warranting their inclu-
sion in the unit. For these same reasons, we cannot
find that the IRS ruling is a special circumstance war-
ranting reopening of the representation case. As noted,
the facts on which the IRS relied were well known to
the Respondent at the time of the hearing and the Re-
gional Director’s decision did not challenge the Sec-
tion 2(3) status of the ‘‘contracted service’’ employees.
Third, we also find that because the Respondent did
not request review of the Regional Director’s Decision
and Direction of Election, it is now precluded from at-
tacking the Regional Director’s decision to exclude the
contracted service employees. See Ritz-Carlton Hotel
Co. v. NLRB, 123 F.3d 760 (3d Cir. 1997), enfg. 321
NLRB 659 (1996).
We therefore find that the Respondent has not raised
any representation issue that is properly litigable in
this unfair labor practice proceeding. See Pittsburgh
Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).
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643UNIVERSITY OF RIO GRANDE
Accordingly, we grant the Motion for Summary Judg-
ment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been en-
gaged in the operation of an institution of higher learn-
ing at Rio Grande, Ohio. During the 12-month period
preceding the issuance of the complaint, the Respond-
ent, in conducting its operations described above, de-
rived gross revenues, excluding contributions which
because of limitation by the grantor are not available
for operating expenses, in excess of $1 million and
purchased and received at its Rio Grande, Ohio facility
goods valued in excess of $10,000 directly from points
outside the State of Ohio.
We find that the Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and
(7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held August 9, 1997, the
Union was certified on October 10, 1997, as the exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time hourly employ-
ees, including maintenance employees, clerical
employees, secretaries, groundskeepers, child de-
velopment teachers and assistant teachers, ac-
counting clerks, the crossroad computer specialist,
the tech prep secretary and print shop employees
employed by [Respondent] at its Rio Grande,
Ohio facility, excluding all confidential employ-
ees, managerial employees, work study student
employees, student labor employees, contracted
service employees, athletic coaches, counselors,
salaried administrators and assistant administra-
tors, directors, assistant directors, registered
nurses, faculty members and all other professional
employees, guards and supervisors as defined in
the Act.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
B. Refusal to Bargain
Since December 3, 1997, the Union, by letter, has
requested the Respondent to bargain and, since Decem-
ber 9, 1997, the Respondent, by letter, has refused. We
find that this refusal constitutes an unlawful refusal to
bargain in violation of Section 8(a)(5) and (1) of the
Act.
CONCLUSION OF LAW
By refusing on and after December 9, 1997, to bar-
gain with the Union as the exclusive collective-bar-
gaining representative of employees in the appropriate
unit, the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent has violated Sec-
tion 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 un-
derstanding in a signed agreement.
To ensure that the employees are accorded the serv-
ices of their selected bargaining agent for the period
provided by the law, we shall construe the initial pe-
riod of the certification as beginning the date the Re-
spondent begins to bargain in good faith with the
Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962);
Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817
(1964); Burnett Construction Co., 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
ORDER
The National Labor Relations Board orders that the
Respondent, University of Rio Grande, Rio Grande,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with United Mine Workers
of America, AFL–CIO, CLC, as the exclusive bargain-
ing representative of the employees in the bargaining
unit.
(b) In any like or related manner interfering with,
restraining, 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 representative of the employees in the following
appropriate unit on terms and conditions of employ-
ment and, if an understanding is reached, embody the
understanding in a signed agreement:
All full-time and regular part-time hourly employ-
ees, including maintenance employees, clerical
employees, secretaries, groundskeepers, child de-
velopment teachers and assistant teachers, ac-
counting clerks, the crossroad computer specialist,
the tech prep secretary and print shop employees
employed by [Respondent] at its Rio Grande,
Ohio facility, excluding all confidential employ-
ees, managerial employees, work study student
employees, student labor employees, contracted
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644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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
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.’’
service employees, athletic coaches, counselors,
salaried administrators and assistant administra-
tors, directors, assistant directors, registered
nurses, faculty members and all other professional
employees, guards and supervisors as defined in
the Act.
(b) Within 14 days after service by the Region, post
at its facility in Rio Grande, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’1 Copies of the no-
tice, on forms provided by the Regional Director for
Region 9 after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since December 9, 1997.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United Mine
Workers of America, AFL–CIO, CLC as the exclusive
representative of the employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
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 bargaining unit:
All full-time and regular part-time hourly employ-
ees, including maintenance employees, clerical
employees, secretaries, groundskeepers, child de-
velopment teachers and assistant teachers, ac-
counting clerks, the crossroad computer specialist,
the tech prep secretary and print shop employees
employed by us at our Rio Grande, Ohio facility,
excluding all confidential employees, managerial
employees, work study student employees, student
labor employees, contracted service employees,
athletic coaches, counselors, salaried administra-
tors and assistant administrators, directors, assist-
ant directors, registered nurses, faculty members
and all other professional employees, guards and
supervisors as defined in the Act.
UNIVERSITY OF RIO GRANDE
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