Manhattan College

National Labor Relations Board - Board Decisions

Apr 27, 2018

366 NLRB No. 73 (N.L.R.B. 2018)

366 NLRB No. 73
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.
Manhattan College and Manhattan College Adjunct
Faculty Union, New York State United Teachers
(NYSUT), AFT/NEA/AFL–CIO. Case 02–CA–
201623
April 27, 2018
DECISION AND ORDER
BY MEMBERS PEARCE, MCFERRAN, AND EMANUEL
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 June 29, 2017,
by Manhattan College Adjunct Faculty Union, New York
State United Teachers (NYSUT), AFT/NEA/AFL-CIO
(the Union), the General Counsel issued the complaint on
September 19, 2017, alleging that Manhattan College
(the Respondent) 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 02–RC–023543. (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 deny-
ing in part the allegations in the complaint, and asserting
affirmative defenses.
On October 4, 2017, the General Counsel filed a Mo-
tion for Summary Judgment. On October 17, 2017, 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 November 14, 2017, the Re-
spondent filed an Opposition to the Motion for Summary
Judgment. On December 1, 2017, the General Counsel
filed a Reply to the Opposition. On January 4, 2018, the
Respondent filed a Sur-Reply to the General Counsel’s
Reply. On February 21, 2018, the General Counsel filed
a limited response to the Respondent’s Sur-Reply.
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 Board lacks jurisdiction over Manhattan College as a
religiously-affiliated university and that the Board’s test
for asserting its jurisdiction, as set forth in Pacific Lu-
theran University, 361 NLRB 1404 (2014), constitutes
an unconstitutional intrusion into the Respondent’s reli-
gious liberty. 1
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). Accord-
ingly, we grant the Motion for Summary Judgment.
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a pri-
vate nonprofit college, with a facility located at 413
Manhattan College Parkway, Bronx, New York, that has
been engaged in the operation of a higher education insti-
tution.
Annually, the Respondent, in the course and conduct
of its business operations has a gross annual operating
revenue exceeding $1 million. Annually, the Respond-
ent, in the course and conduct of its business operation
receives in excess of $50,000 in income from the State of
New York, an entity which is directly engaged in inter-
state commerce.
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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the mail ballot representation election
where ballots were mailed to eligible employees on Feb-
ruary 16, 2011, the Union was certified on June 14,
2017,2 as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:

1 Member Emanuel did not participate in the underlying representa-
tion proceeding. He expresses no opinion on the merits of the Board’s
decision in that proceeding or on whether Pacific Lutheran University,
supra, was correctly decided. Nonetheless, he agrees with his col-
leagues that the Respondent has not raised any new matters that are
properly litigable in this unfair labor practice proceeding and that sum-
mary judgment is appropriate, with the parties retaining their respective
rights to litigate relevant issues on appeal.
2 By an unpublished order dated April 20, 2017, the Board issued an
Order excluding adjunct faculty working the Department of Religious
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
All individuals employed as part-time faculty with an
adjunct academic rank who teach a minimum of a three
(3) credit college degree level course for a full semester
(or the equivalent hours of a semester length course),
excluding adjunct faculty in the Department of Reli-
gious Studies, all other full and part-time employees,
including visiting and full time faculty, regardless of
teaching load, students who are employed by the Col-
lege, and guards and supervisors as defined in the Act.
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 June 14, 2017, the Union requested that
the Respondent recognize and bargain with it as the ex-
clusive collective-bargaining representative of the unit
employees. By letter dated July 12, 2017, the Respond-
ent refused to recognize and bargain with the Union and
indicated that it would challenge the certification of 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 July 12, 2017, to recog-
nize and bargain with the Union as the exclusive collec-
tive-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

Studies from the unit found appropriate and denied the Respondent’s
request for review in all other aspects. Manhattan College, Case 02–
RC–023543, 2017 WL 1434209.
(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, Manhattan College, New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Manhattan College Adjunct Faculty Union, New York
State United Teachers (NYSUT), AFT/NEA/AFL-CIO
(the Union) as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining 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 individuals employed as part-time faculty with an
adjunct academic rank who teach a minimum of a three
(3) credit college degree level course for a full semester
(or the equivalent hours of a semester length course),
excluding adjunct faculty in the Department of Reli-
gious Studies, all other full and part-time employees,
including visiting and full time faculty, regardless of
teaching load, students who are employed by the Col-
lege, and guards and supervisors as defined in the Act.
(b) Within 14 days after service by the Region, post at
its New York, New York facility, copies of the attached
notice marked “Appendix.”3 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily 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 custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-

3 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.”
MANHATTAN COLLEGE 3
ered 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 current em-
ployees and former employees employed by the Re-
spondent at any time since July 12, 2017.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 2 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. April 27, 2018
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
_____________________________________
William J. Emanuel, 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 Manhattan College Adjunct Faculty Union, New
York State United Teachers (NYSUT), AFT/NEA/AFL–
CIO (the Union) as the exclusive collective-bargaining
representative of our 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
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 individuals employed as part-time faculty with an
adjunct academic rank who teach a minimum of a three
(3) credit college degree level course for a full semester
(or the equivalent hours of a semester length course),
excluding adjunct faculty in the Department of Reli-
gious Studies, all other full and part-time employees,
including visiting and full time faculty, regardless of
teaching load, students who are employed by us, and
guards and supervisors as defined in the Act.
MANHATTAN COLLEGE
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-201623 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.