Ithaca College

National Labor Relations Board - Board Decisions

Aug 22, 1979

244 N.L.R.B. 517 (N.L.R.B. 1979)

Ithaca College and Ithaca College Facultl Association
(I.C.F.A.). Case 3 ('CA 8962
August 22 1979
DECISION AN[) ORDER
BY CIIAIRMAN FANNING( ANI) MIM1BI RS PI N I I()
ANI) TRt'I SI)AI I
Upon a charge filed on February 23, 1979. hy
Ithaca ('College Faculty Association (I.C.F.A.) herein
called the Association, and duly served on Ithaca
College, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 3, issued a complaint
and notice of hearing on March 29, 1979, 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
(1) 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.
The complaint alleges in substance that on January
31, 1979, following a Board election in Case 3 RC
7107, the Association was duly certified as the exclu-
sive collective-bargaining representative of' Respon-
dent's employees in the unit found appropriate:' that,
commencing on or about February 12, 1979, 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 February 9,
1979, and at all times thereafter, Respondent has re-
fused, and continues to date to refuse, to supply the
Association with certain requested information rel-
evant to and necessary for the Association's perform-
ance as the collective-bargaining representative of the
unit employees. On April 6, 1979, Respondent filed its
answer to the complaint admitting in part, and deny-
ing in part. the allegations in the complaint.
On May 17, 1979, counsel for the General Counsel
filed directly with the Board a Motion for Summary
Judgment. Subsequently. on May 23, 1979, the Board
issued an order transferring the proceeding to the
Official notice is taken of the record in the representation proceeding.
Case 3 RC 7107. as the term "record" is defined In Secs 102 68 and
102.69(gl of the Board's Rules and Regulatioins, Series 8, as amended See
ITI' £Feietross, temv In . 66 NlRB 938 (1967i. enfd 388 F 2d 683 4th ('ir
1968); Golden .ger Beverage (o., 167 NlRB 151 (1967), enid 415 .2d 26
(5th Cir. 1969): Interuvpe Co. v. Peneilii, 269 F.Supp 573 (i)C a 1967):
Follet Corp.. 164 NLRB 378 (1967), enfdJ. 397 F.2d 91 7th Cir. 1968): Sec
9(d) of the NIRA, as amended
11 It ('A ('01I.l.(<-.
Board and a Notice To Show Cause wh\ the General
Counsel's Motion for Summary' Judgment should not
be gratnted. Respondent thereafter filed a response to
Notice To Show Cause and, subsequently, the Associ-
ation filed its brief in support of the General Coun-
sel's motion and a request for extraordinary relief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional abor 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 Summar' Judgment
In its answer to the complaint. Respondent admits
that it has refused to bargain with the Association
since Februarv 16. 1979. However, Respondent con-
tests the representative status of the Association on
the grounds that (1) the full-time faculty members of
the college are managerial and/or supervisors per-
sonnel and not employees within the meaning of Sec-
tion 2(3) of the Act: (2) the Board's certification of
the Association is without effect because the Board
erred in adopting the Regional Director's indings
and recommendations in the Report on Objections
and Challenges dated November 8, 1978: and (3) the
Board further erred by rejecting certain exceptions
filed by Respondent to the Regional Director's Re-
port on Objections and Challenges. With respect to
the allegation that its refusal to supply certain infor-
mation to the Association constitutes an additional
violation of the Act, Respondent contends that the
requested information, a list of names of those full-
time faculty members being considered for promotion
and/or tenure, pertains to a nonmandatory subject or
bargaining and that the requested information was
available to the Association through other sources.
Consequently, Respondent contends that it has no le-
gal obligation to furnish the requested information.
In support of the Motion for Summary Judgment.
the General Counsel contends. inter alia. that Re-
spondent is attempting to relitigate matters consid-
ered and disposed of in the prior representation pro-
ceeding. The General Counsel further contends that
the requested information is relevant to the Associ-
ation in discharging its statutory responsibilities as
collective-bargaining representative of the unit em-
ployees.
Review of the entire record in this proceeding. in-
cluding that in Case 3 RC-7107, establishes that pur-
suant to a Decision and Direction of Election, an
election was held on March 3. 1978, in which the vote
was 70 for Petitioner, 2 74 for the Association, 98
2 The petiln was tiled on December 8. 1977. hb Ithaca ('College (hapter
AAt P
244 NLRB No. 54
517
I)DEC(ISIONS OF NAIIONAL I.ABOR RELATIONS BOARD
against the participating labor organizations, and 10
challenged ballots. After an investigation, the Re-
gional Director issued a Report on Challenged Bal-
lots and Objections recommending that the objections
be overruled and that five challenges be sustained and
five challenges be overruled. On July 26, 1978, the
Board issued an order adopting the Regional Direc-
tor's report and directing the Regional Director to
open and count five challenged ballots. The revised
tally which issued showed 71 votes for Petitioner, 74
for the Association, and 104 against the participating
labor organizations.
Because none of the choices received a majority in
the initial election, pursuant to Section 102.70 of the
Board's Rules and Regulations, Series 8, as amended,
a runoff election was conducted on September 29,
1978.) Results of the runoff election showed 116 votes
for the Association, 109 against, with 9 challenged
ballots. The Employer filed objections and, on No-
vember 8, 1978. the Regional Director issued a Re-
port on Objections and Challenges recommending
that Respondent's objections be overruled and that
three of the challenges be overruled, leaving an insuf-
ficient number of challenges to affect the outcome of
the runoff election. On January 31, 1979, the Board
issued a Decision and Certification of Representative,
adopting the Regional Director's findings and recom-
mendations and certifying the Association. There-
after, Respondent filed a motion for reconsideration
which the Board denied on February 22, 1979.
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 relitigate
issues which were or could have been litigated in a
prior representation proceeding.4
With the exception of its defense to the allegation
that it has refused to supply the Association with cer-
tain requested information, all issues raised by Re-
spondent in this proceeding were or could have been
litigated in the prior representation proceeding, and
Prior to the runoff election, Respondent filed a motion bor rehearing.
which was denied by the Regional Director on August 25. 1978. and on
September 25. 1978. the Board denied Respondent's request for review of the
Regional Director's denial of its motion. On or about September 15. 1978.
Respondent attempted to withdraw the previously submitted Excelsior list
on the ground that every individual named on that list was a supervisor
and/or managerial employee. Dunng the runoff election Respondent at-
tempted to challenge the status of every voter on the same basis. In support
of its motion for rehearing and attempted withdrawal of the Excelsior list.
Respondent relied on the Second Circuit Court of Appeals' ruling in
N.L.R.B. v. Yeshiva University, 582 F.2d 686 (1978), cert. granted 99 S. Ct.
1212 (1979). With all due respect to the view expressed by the Second Circuit
in Yeshiva, supra. we shall adhere to our pIxsition until the Supreme Court
has passed on the matter.
'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 102.6
9(c).
Respondent does not offer to adduce at a hearing any
newly discovered or previously 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.
With respect to the request to supply information,
Respondent concedes that the Association has re-
quested a list of all full-time faculty members cur-
rently being considered for promotion and/or tenure.
As the collective-bargaining representative for em-
ployees within the appropriate unit, the Association is
entitled to information on the classification and se-
niority of each unit employee and to information con-
cerning any changes in an employee's status. Conse-
quently, we find that Respondent's affirmative
defense to the allegation of refusal to supply informa-
tion is without merit.
We therefore find that Respondent has not raised
any issue which is properly litigable in this unfair la-
bor practice proceeding. Accordingly., we grant the
Motion for Summary Judgment.5
On the basis of the entire record, the Board makes
the following:
FINiDING(;S OF FA(I
I. THE BUSINESS OF RESPONDEN I
Respondent is a private, nonprofit institution of
higher education, chartered by the State of New
York, with its principal campus and headquarters at
Ithaca, New York. Respondent derives annual gross
revenues in excess of $1 million. In the course and
conduct of its annual business operations, Respon-
dent purchases, transfers, and delivers to the Ithaca,
New York, campus goods and materials valued in ex-
cess of $50,000 which are transported to said campus
directly from States of the United States other than
the State of New York.
We find, on the basis of the foregoing, that Respon-
dent 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 jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOI.VED
Ithaca College Faculty Association (I.C.F.A.) is a
labor organization within the meaning of Section 2(5)
of the Act.
The Association's request for extraordinary remedies is denied since we
do not believe that the defenses raised by Respondent in this proceeding are
patently frivolous.
ITHACA COI.IEGE .
IIl. TIHE UNFAIR LABOR PRA(TI(TS
A. The Representation Proceeding
I. 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 full-time faculty members employed by
Ithaca College at its Ithaca, New York, location
and at the Albert Einstein Medical Center in
New York City, but excluding all guards, part-
time faculty, and supervisors as defined in the
Act.
2. The certification
On September 29, 1978, 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 Association as
their representative for the purpose of collective bar-
gaining with Respondent.
The Association was certified as the collective-bar-
gaining representative of the employees in said unit
on January 31, 1979, and the Association 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 January 31, 1979, and at
all times thereafter, the Association has requested Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about February 16, 1979, and continuing at all
times thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Association as the exclusive representative for collec-
tive bargaining of all employees in said unit.
On or about February 6, 1979, the Association re-
quested Respondent to furnish it with certain infor-
mation relevant to and necessary for the Association's
performance as the collective-bargaining representa-
tive of the unit employees. Since on or about Febru-
ary 9, 1979, and, at all times thereafter to date, Re-
spondent has refused, and continues to refuse, to
supply the Association with the requested informa-
tion.
Accordingly, we find that Respondent has, since
February 16, 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, by such refusal, Respondent has en-
gaged in and is engaging in unfair labor practices
within the meaning of' Section 8(a)(5) and ( I ) of the
Act. We further find that Respondent has, since Feb-
ruary 9, 1979, and at all times thereafter, refused to
supply the Association with certain requested infor-
mation necessary for and relevant to the Association's
performance as the collective-bargaining representa-
tive of the unit employees and, by such refusal. Re-
spondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
IV. FillH FFECt1 F lti UNFAIR I .B()R PRA('I I(IS
UPON ('()OMMliIR(':
The activities of Respondent set forth in section
II, 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. 1111 REMII)Y
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 Association as
the exclusive representative of all employees in the
appropriate unit, and, ift' an understanding is reached,
embody such understanding in a signed agreement.
We shall further order Respondent to supply the As-
sociation. upon request. with information necessary
for and relevant to the Association's performance of
its function as the collective-bargaining representative
of the unit employees.
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 commences
to bargain in good faith with the Association as the
recognized bargaining representative in the appropri-
ate unit. See Mar-Jac Poultry CompanI, Inc., 136
NLRB 785 (1962); Commerce Comnpany d/h/a Lamar
Hotel, 140 NLRB 226. 229 (1962), enfd. 328 F.2d 600
(5th Cir. 1964), cert. denied 379 U.S. 817: Burnett
Construction Company. 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:
519
DI('ISIONS OF NA IONAI ILABOR RELAT'IONS BOARD
(oNLusIoNS () LAWV
1. Ithaca College is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. Ithaca College Faculty Association (I.C.F.A.) is
a labor organization within the meaning of' Section
2(5) of the Act.
3. All full-time faculty members employed by
Ithaca College at its Ithaca, New York, location and
at the Albert Einstein Medical Center in New York
City, but excluding all guards, part-time faculty, and
supervisors as defined in the Act constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since January 31, 1979, 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 February 16, 1979, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bar-
gaining representative of' all the employees of' Re-
spondent in the appropriate unit, and by refusing. on
or about February 9, 1979. to supply the Association
with certain requested information necessary for and
relevant to the Association's performance as the col-
lective-bargaining representative of the unit employ-
ees, 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 refusals to bargain, and supply
information, Respondent has interfered with, re-
strained, and coerced, and is interfering with, re-
straining, and coercing, employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
and thereby has engaged in and is engaging in unfair
labor practices within the meaning 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 Rela-
tions Board hereby orders that the Respondent.
Ithaca College, Ithaca, 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 Ithaca College Faculty
Association (I.C.F.A.) as the exclusive bargaining
representative of its employees in the following ap-
propriate unit:
All full-time faculty members employed by
Ithaca College at its Ithaca, New York, location
and at the Albert Einstein Medical Center in
New York City, but excluding all guards, part-
time faculty. and supervisors as defined in the
Act.
(b) Refusing to provide the Association, upon re-
quest, information relevant to and necessary for its
performance as the collective-bargaining representa-
tive of the unit employers.
(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, it' an understand-
ing is reached. embody such understanding in a
signed agreement and provide the Association, upon
request, a list of all full-time faculty members being
considered for promotion and/or tenure and all other
information relevant to and necessar for the Associ-
ation's performance as the collective-bargaining rep-
resentative of' the unit employees.
(b) Post at its Ithaca, New York, facility copies of'
the attached notice marked "Appendix."' (Copies of
said notice, on frms provided by the Regional I)irec-
tor for Region 3, after being duly signed by Respon-
dent's representative, shall be 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.
(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.
6 In the event that this Order is enlforced by a Judglent tif a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National l.abor Relations Board" shall read "Posted Pursuant Itl a Judgment
of the United States Court of Appeals ntiircing an Order of' the National
L.abor Relations Board."
520
521
A PPlIN 1)1I X
NolI( lo E)MPI ()YilS
P()sitD BY ORDI)IR () 1111i
NAII()NAI. LAB()R RiI.AII()NS BO(ARI)
An Agency of the United States Government
Wi: wu. N refuse to bargain collectively
concerning rates of pas. wages, hours, and other
terms and conditions of employment with Ithaca
College Faculty Association (I.C.F.A.) as the ex-
clusive representative of the employees in the
bargaining unit described below.
V'Il WVll.l NO()I refuse to provide the above-
named Association with information relevant to
and necessary for collective bargaining.
WEI WILL Not in any' like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them ho
Section 7 of the Act.
W vI W , upon request, supply the Associ-
ation with a list of all full-time tfaculty members
being considered for promotion and/or tenure.
WI WI.L.. upon request. bargain with the
above-named association, as the exclusive repre-
sentative of all employees in the hargaining unit
described below, with respect to rates of pas,
wages, hours, and other terms and conditions of
emplo ment, and, if an understanding is
reached, embody such understanding in a signed
agreement. The bargaining unit is:
All full-time faculty members emplosed by
Ithaca College at its Ichaca. New York. location
and at the Albert Einstein Medical Center in
New York City. but excluding all guards. part-
time fculty, and supervisors as defined in the
Act.
II tA(A COI.I.(l !
I'I'tIA(', N COlEG|I