Drury College

National Labor Relations Board - Board Decisions

Aug 31, 1979

244 N.L.R.B. 747 (N.L.R.B. 1979)

DRURY CC
Drury College and American Association of University
Professors-Drury Chapter.' Case 17-CA-8891
August 31, 1979
DECISION AND ORDER
BY CHIAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
Upon a charge filed on April 11, 1979, by the asso-
ciation, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
17, issued a complaint and notice of hearing on April
23, 1979. against Drury College alleging that it 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 Na-
tional 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 in this proceeding.
The complaint alleges, in substance, that on Febru-
ary 14, 1979, following a Board election in Case 17-
RC-8469, the association was duly certified as the
exclusive collective-bargaining representative of Dru-
ry College's employees in the unit found appropri-
ate;2 that the Association, since on or about February
18, 1979, and thereafter, has requested and is request-
ing Drury College to bargain collectively with it, and
that Drury College has refused to do so since Febru-
ary 22, 1979. On April 25, 1979, Drury College filed
its answer to the complaint admitting in part and de-
nying in part the allegations in the complaint.
On May 11, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently, on May 22, 1979, the Board
issued an Order transferring the proceeding to the
Board and Notice to Show Cause why the General
Counsel's Motion for Summary Judgment should not
be granted. On May 31, 1979, Drury College filed a
response in opposition to the motion.
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:
I Herein called the Association.
2 Official notice is taken of the record in the representation proceeding.
Case 17-RC-8469. 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 (4th Cir.
1968): Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
(Sth Cir. 1969): ntertype Co. v. Penello, 269 F.Supp. 573 (7th Cir. 1968); Sec.
9(d) of the NLRA, as amended.
747
Ruling on Motion for Summary Judgment
In its answer to the complaint Drury College con-
tends for the following reasons that it did not engage
in unlawful conduct in violation of Section 8(a)(5)
and (1) of the Act by refusing to bargain with the
Association: (I) At no time has there been a finding
by the Regional Director or by the Board that the
Association is a labor organization within the mean-
ing of Section 2(5) of the Act; (2) the Association is
not a labor organization within the meaning of Sec-
tion 2(5) because it is dominated and controlled by
supervisors and/or managerial employees: and (3)
the alleged appropriate unit is, in fact and in law,
inappropriate and unlawful because the faculty mem-
bers included therein are either supervisors or man-
agerial employees.
Drury College reiterated the foregoing defenses in
its response to the General Counsel's motion and also
cited in support thereof N.L.R.B. v. Yeshiva Univer-
sity, 582 F.2d 686 (2d Cir. 1978). wherein the court
held that the full-time members of that institution
were supervisors within the meaning of Section 2(11)
of the Act and/or managerial employees and as such
could not properly be included in the bargaining unit
as employees.
Review of the record in this proceeding, including
that in Case 17-RC-8469, establishes the following:
On May 30, 1978, the Regional Director for Region
17 issued a Decision and Direction of Election in
which he found, inter alia, that the Association is a
labor organization within the meaning of the Act,'
and that the appropriate unit consisted of all full-time
faculty members who are on the tenure track at Dru-
ry College.
A secret-ballot election was conducted on June 22,
1978, and the challenged ballots were sufficient in
number to affect the results of the election. Pursuant
to an order of the Regional Director a hearing was
held before a hearing officer who, on August 7, 1978,
issued a report on the challenged ballots. Following
the Employer's exceptions thereto the Board, on De-
cember 19, 1978, issued a Decision and Order direct-
ing the Regional Director to open and count certain
ballots.
On December 31, 1978, the Employer filed a mo-
tion with the Regional Director to, inter alia, reopen
the hearing, to take testimony on the status of the
Association as a labor organization and on the appro-
priateness of the unit, and to issue a supplemental
decision finding that the Association is not a bona
fide labor organization within the meaning of Section
2(5) of the Act because its membership is composed
of supervisors and/or managers who, as such, are im-
properly included in the unit. In so moving the Em-
Drury College so stipulated at the representation hearing
244 NLRB No. 92
D7FCISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer stated that the Regional Director's Decision
and Direction of Election was contrary to N. L. R. B. v.
Yeshiva Univlersil'v, spra, and that it was withdrawing
its stipulation concerning the Association's status as a
labor organization because it never thereby intended
that the Association would have the right to represent
supervisors and/or managers as part of the appropri-
ate unit.
On January 29, 1979, the Employer's motion for
reconsideration was denied by the Board, which re-
jected the Employer's attempt to withdraw the stipu-
lation respecting the Association's status as a labor
organization and held that the unit findings of the
Regional Director were based on established Board
precedent. Accordingly, with due deference to the
court's decision in N.L.R.B. v. Yeshiva LUniversitv, su-
pra, the Board held that it was adhering to the Re-
gional Director's determination regarding the appro-
priate unit until the Supreme Court ruled otherwise.
Following the counting of the challenged ballots
and the issuance of a revised tally of ballots, which
showed that a majority of the valid ballots were cast
for the Association, the Regional Director certified
the Association as the collective-bargaining repre-
sentative of the employees in the appropriate unit on
February 14, 1979.
As indicated above, on February 18, 1979, the As-
sociation requested Drury College to bargain collec-
tively with it as the exclusive collective-bargaining
representative of the employees in the appropriate
unit. On February 22, 1979, the Employer declined
the request on the basis of N.L.R.B. v. Yeshiva Uni-
versitvy, supra.
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) of the Act is not entitled
to relitigate issues which were or could have been liti-
gated in a prior representation proceeding. 4 All issues
raised by Drury College in this proceeding were or
could have been litigated in the prior representation
proceeding. Drury College does not offer to adduce at
a hearing any newly discovered or previously unavail-
able evidence, nor does it allege that any special cir-
cumstances exist herein which could require the
Board to reexamine the decision made in the repre-
sentation proceeding.' We therefore find that Drury
College has not raised any issue which is properly
litigable in this unfair labor practice proceeding. Ac-
4See 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).
As we have already held in denying Drury College's motion for reconsid-
eration, dated December 31, 1978. we shall, with all due respect to the view
expressed by the court in N L. R.B. v. Yeshiva L'nivrersir, supra, adhere to our
position with regard to the issues herein until the Supreme Court has ruled
otherwise.
cordingly, we grant the General Counsel's Motion for
Summary Judgment.
On the basis of the entire record the Board makes
the following:
FINDIN(;S OF FA('I'
1. IllE BUSINISS ()F I)RU'RY ('()L.i(;1'
Drury College, a State of Missouri nonprofit corpo-
ration, is engaged in the operation of a private liberal
arts college with its main campus located in Spring-
field, Missouri. It has gross annual revenues, exclusive
of contributions unavailable for use as operating ex-
penses, in excess of $1 million. In the course and con-
duct of its business within the State of Missouri Dru-
ry College annually purchases goods and services
valued in excess of $50,000 directly from sources lo-
cated outside the State of Missouri.
We find on the basis of the foregoing that Drury
College is and has been at all times herein an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and that it will effec-
tuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR OR(;ANIZATION INVOLVED
American Association of University Professors-
Drury Chapter is a labor organization within the
meaning of Section 2(5) of the Act.
II1. THE UNFAIR LABOR PRAC(TI('ES
A. The Representation Proceeding
1. The unit
The following employees of Drury College consti-
tute a unit appropriate for collective-bargaining pur-
poses within the meaning of Section 9(b) of the Act:
All full-time faculty members who are on the
tenure track at Drury College at its Springfield,
Missouri, location, including instructors, assist-
ant professors, associate professors, full profes-
sors, professional librarians, the Director of Test-
ing, the Chaplain, the Director of Broadcast
Programming, but excluding the President and
Vice-President, the Dean of Students and his
staff, the Dean of the College, the Director of the
Registrars Office, the Director of Admissions,
faculty members teaching exclusively in off-cam-
pus programs. part-time faculty members teach-
ing exclusively in the continuing education pro-
gram, the Director of the Financial Aid Office,
the Director of the Alumni and Development
748
DRURY COLLEGE
Office, the Director of Public Information, non-
professional staff members, guards and supervi-
sors as defined in the Act, and all other employ-
ees.
2. The certification
On June 22, 1978, a majority of the employees of
Drury College in said unit, in a secret-ballot election
conducted under the supervision of the Regional Di-
rector for Region 17, designated American Associ-
ation of University Professors-Drury Chapter as
their representative for the purposes of collective bar-
gaining with Drury College. It was certified as the
collective-bargaining representative of the employees
in said unit on February 14, 1979, and it continues to
be such exclusive representative within the meaning
of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's Ref/isal
Commencing on or about February 18, 1979, and
at all times thereafter the Association has requested
Drury College 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 February 22, 1979. and continu-
ing at all times thereafter to date Drury College has
refused and continues to refuse to recognize and bar-
gain with the Association as the exclusive representa-
tive for the collective bargaining of all employees in
said unit.
Accoruingly, we find that Drury College has, since
February 22, 1979, and at all times thereafter refused
to bargain collectively with the Association as the ex-
clusive representative of the employees in the appro-
priate unit, and that by such refusal Drury College
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(5) and (1) of
the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Drury College set forth in section
III, above, occurring in connection with its operations
described in section 1, above, have a close, intimate.
and substantial relationship to trade, traffic, and com-
merce 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 Drury College has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and ( I) of the Act, we shall
order that it cease and desist therefrom and, upon
request, bargain collectively with the Association 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 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 certification
as beginning on the date Drury College commences
to bargain in good faith with the Association as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry Company Inc.. 136
NLRB 785 (1962): Commerce Compan yi d/h/a Lamar
Hotel, 140 NLRB 226, 229 (1962), entfd. 328 F.2d (5th
Cir. 1964), cert. denied 379 U.S. 817: Burnett (Con-
struction Company . 149 NL.RB 1419. (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(CIUSIONS o() LAW
1. Drury College is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. American Association of University Profes-
sors-Drury Chapter is a labor organization within
the meaning of Section 2(5) of the Act.
3. All full-time faculty members who are on the
tenure track employed by Drury College at its Spring-
field. Missouri. location. including instructors, assist-
ant professors, associate professors. full professors.
professional librarians. the Director of testing. the
chaplain, the director of broadcast programing. hut
excluding the president and vice president. the dean
of students and his staff, the dean of the college. the
director of the registrars office, the director of admis-
sions, faculty members teaching exclusively in off'-
campus programs, part-time faculty members teach-
ing exclusively in the continuing education program,
the director of the financial aid office, the director of
the alumni and development office, the director of
public information, nonprofessional staff mcmbers.
guards and supervisors as defined in the Act, and all
other employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. Since June 22, 1978, the above-named labor or-
ganization has been and now is the certified and ex-
clusive representative of all employes in the aforesaid
appropriate unit for the purpose of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing on or about February 22. 1979. and
at all times thereafter to bargain collectively with the
749
DEC[ISIONS OF NATIONAL LABOR RELATIONS BOARD
above-named labor organization as the exclusive bar-
gaining representative of all the employees of Drury
College in the appropriate unit Drury College has en-
gaged 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 Drury Col-
lege has interfered with, restrained, and coerced and
is interfering with, restraining, and coercing employ-
ees in the exercise of the rights guaranteed them in
Section 7 of the Act and thereby has engaged in and
in engaging in unfair labor practices within the mean-
ing of Section 8(a)( ) 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 Rela-
tions Board hereby orders that the Respondent. Dru-
ry College, Springfield, Missouri, 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 American Association of
University Professors-Drury Chapter as the exclu-
sive bargaining representative of its employees in the
following appropriate unit:
All full-time faculty members who are on the
tenure track employed by Drury College at its
Springfield. Missouri, location, including instruc-
tors, assistant professors, associate professors,
full professors, professional librarians, the Direc-
tor of Testing, the Chaplain. the Director of
Broadcast Programming, but excluding the Pres-
ident and Vice President, the Dean of Students
and his staff, the Dean of the College, the Direc-
tor of the Registrars Office, the Director of Ad-
missions, faculty members teaching exclusively
in off-campus programs, part-time faculty mem-
bers teaching exclusively in the continuing edu-
cation program, the Director of the Financial
Aid Office, the Director of the Alumni and De-
velopment Office, the Director of Public Infor-
mation, nonprofessional staff members, guards
and supervisors as defined in the Act, and all
other employees.
(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 understand-
ing is reached, embody such understanding a signed
agreement.
(b) Post at its Springfield, Missouri, facility copies
of the attached notice marked "Appendix. " 6 Copies
of said notice, on forms provided by the Regional
Director for Region 17. after being duly signed by
Drury College's representative, shall be posted by
Drury College immediately upon receipt thereof" and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Drury College to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
6 In the event that this Order is enforced by a Judgment ot'a United States
court of appeals, the words in the notice reading "Posled b order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an order o the National
l.abor Relations Board."
APPENDIX
Noi ict To EMPLOY:ES
P()S'IE) BY ORDER OF 1HlE
N A I()NA LAB()R R.A I I()NS BOARI)
An Agency of the United States Government
WE WIll NOr refuse to bargain collectively
concerning rates of pay. wages, hours, and other
terms and conditions of employment with the
American Association of University Professors-
Drury Chapter as the exclusive 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 the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed 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 bargaining unit is:
All full-time faculty members who are on the
tenure track employed by Drury College at
our Springfield, Missouri location, including
750
instructors. assistant professors. associate pro-
fessors, full professors, professional librarians.
the Director of Testing, the Chaplain. the Di-
rector of Broadcast Programming, but exclud-
ing the President and Vice President, the Dean
of Students and his staff, the Dean of the Col-
lege, the Director of the Registrars Office, the
Director of Admissions. faculty members
teaching exclusively in off-campus programs,
751
part-time faculty members teaching exclu-
sively in the continuing education program.
the Director of the Financial Aid Office. the
Director of the Alumni and Development Of-
fice, the Director of Public Intformation, non-
professional staff members, guards and super-
visors as defined in the Act, and all other
employees.
DR RY C01 :(;[