Pace University

National Labor Relations Board - Board Decisions

Jan 22, 2007

349 N.L.R.B. 68 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
349 NLRB No. 10
68
Pace University and New York State United Teach-
ers/ American Federation of Teachers, AFL–
CIO. Case 2–CA–37884
January 22, 2007
DECISION AND ORDER
BY MEMBERS SCHAUMBER, KIRSANOW, AND WALSH
This is a refusal-to-bargain case in which the Respon-
dent is contesting the Union’s certification as bargaining
representative in the underlying representation proceed-
ings. Pursuant to a charge filed on September 14, 2006,1
the General Counsel issued the complaint on September
28, 2006, alleging that the Respondent has violated Sec-
tion 8(a)(5) and (1) of the Act by refusing the Union’s
request to bargain with respect to certain disputed ad-
junct faculty members employed at the Respondent’s
University following the Union’s certification in Case 2–
RC–22795 and the clarification of the unit description in
Case 2–UC–589. (Official notice is taken of the “record”
in the representation proceedings as defined in the
Board’s Rules and Regulations, Secs. 102.68 and
102.69(g); 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
an affirmative defense.
On October 30, 2006, the General Counsel filed a Mo-
tion for Summary Judgment and memorandum in sup-
port. On November 1, 2006, the Board issued an order
transferring the proceeding to the Board and a Notice to
Show Cause why the motion should not be granted. The
Respondent 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
The Respondent admits its refusal to bargain, but con-
tends that the Board erred in Case 2–UC–589 in includ-
ing in the unit adjunct faculty members and part-time
instructors who were excluded from voting in the elec-
tion. Specifically, the Respondent argues that the dis-
puted employees who do not satisfy the voter eligibility
criteria are casual employees, who are expressly ex-
cluded from the certified unit.
All representation issues raised by the Respondent
were or could have been litigated in the prior representa-
tion proceedings. The Respondent does not offer to ad-

1 The Respondent’s answer denies knowledge or information suffi-
cient to form a belief as to the exact date on which the Union filed the
charge. The Respondent, however, admits receiving a copy of the
charge dated September 14, 2006. Further, a copy of the charge is
included in the documents supporting the General Counsel’s motion,
showing the filing date as alleged, and the Respondent does not contest
the authenticity of this document.
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 decisions made in the representation proceedings.
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, a New York
corporation with an office and place of business located
at One Pace Plaza, New York, New York, has been en-
gaged in the operation of a private nonprofit institution
of higher education. Annually, in the course and conduct
of its business operations described above, the Respon-
dent derives revenues in excess of $1 million, and pur-
chases and receives goods valued in excess of $50,000
directly from suppliers located outside the State of New
York.
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 New York State United Teach-
ers/American Federation of Teachers, AFL–CIO (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 mixed manual and mail ballot election
held between April 26 and May 10, 2004, the Union was
certified on May 26, 2004, as the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:
INCLUDED: All adjunct faculty members, part-time
instructors, and all adjunct faculty members and part-
time instructors who work in a non-supervisory dual
capacity for the Employer, employed by the Employer.
EXCLUDED: All other employees, including adjunct
faculty and part-time instructors employed in the
School of Law, all full-time faculty, casual employees,
independent contractors, guards and supervisors within
the meaning of the Act.
In conducting this election, the Regional Director set
forth the following voter eligibility criteria:
Eligible to vote in the election are those in this unit who
have received appointments and teach or have taught at
PACE UNIVERSITY 69
least 3 credit hours and/or 45 hours in any semester in
any of two academic years during the three year period
commencing with the 2001–2002 academic year and
ending with the 2003–2004 academic year.
On or around October 22, 2004, a dispute arose be-
tween the Respondent and the Union with respect to the
inclusion of certain part-time adjunct faculty members in
the unit. Specifically, during bargaining for an initial
contract, the Respondent insisted that the certified unit
included only those adjunct faculty who satisfied the
voting eligibility criteria described above. Thus, the Re-
spondent’s position was that adjunct faculty do not be-
come unit members until they have taught at least 3
credit hours and/or 45 hours in a semester in 2 of the
preceding 3 academic years, including the current aca-
demic year.
On February 10, 2006, the Union filed a unit clarifica-
tion petition in Case 2–UC–589, which sought to have
the Board resolve the parties’ dispute regarding the
meaning of the voter eligibility formula used for the elec-
tion among adjunct faculty members in the underlying
representation case, Case 2–RC–22795.
On July 5, 2006, in Case 2–UC–589, the Regional Di-
rector issued a Decision and Order Clarifying Unit De-
scription. The Regional Director found that membership
in the certified unit was not limited to only those adjunct
faculty members who satisfied the voting eligibility for-
mula. Accordingly, the Regional Director issued an Or-
der stating that all adjunct faculty members and part-time
instructors who teach at least 3 credit hours and/or 45
hours in one semester are members of the unit. On Au-
gust 23, 2006, the Board issued an unpublished Order
denying the Respondent’s request for review of the Re-
gional Director’s Order Clarifying Unit Description.2
The Union continues to be the exclusive representative
of the certified unit, as clarified by the Regional Director,
under Section 9(a) of the Act.
B. Refusal to Bargain
On or about August 23 and September 11, 2006, the
Union, by telephone and in person, requested the Re-
spondent to bargain with the Union as the exclusive col-
lective-bargaining representative of the unit for all mem-
bers of the unit. Since on or about September 12, 2006,
the Respondent has refused to do so. We find that this

2 The Respondent denies knowledge or information sufficient to
form a belief as to the exact dates on which the Union filed its unit
clarification petition and on which the Board issued its Order denying
the Respondent’s request for review. However, copies of these docu-
ments and the certificate of service are included in the documents sup-
porting the General Counsel’s motion, showing the dates as alleged,
and the Respondent does not contest the authenticity of these docu-
ments.
refusal constitutes an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1) of the Act.
CONCLUSION OF LAW
By refusing since September 12, 2006, to bargain with
the Union as the exclusive collective-bargaining repre-
sentative of all the employees in the appropriate unit, the
Respondent has engaged in unfair labor practices affect-
ing 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 on the date the Respondent begins to
bargain in good faith with the Union with respect to all
the members in the certified unit. Mar-Jac Poultry Co.,
136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226,
229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. de-
nied 379 U.S. 817 (1964); and 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, Pace University, New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with New York State United
Teachers/American Federation of Teachers, AFL–CIO,
as the exclusive bargaining representative of the employ-
ees 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 exclusive
representative of the employees in the following appro-
priate unit on terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
INCLUDED: All adjunct faculty members, part-time
instructors, and all adjunct faculty members and part-
time instructors who work in a non-supervisory dual
capacity for the Employer, employed by the Employer.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD70
EXCLUDED: All other employees, including adjunct
faculty and part-time instructors employed in the
School of Law, all full-time faculty, casual employees,
independent contractors, guards and supervisors within
the meaning of the Act.
(b) Within 14 days after service by the Region, post at
its facility in New York, New York, copies of the at-
tached 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
representative, shall be posted by the Respondent 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 notices are not al-
tered, 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 facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since September
12, 2006.
(c) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing 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 vio-
lated 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

3 The Respondent denies knowledge or information sufficient to
form a belief as to the exact dates on which the Union filed its unit
clarification petition and on which the Board issued its Order denying
the Respondent’s request for review. However, copies of these docu-
ments and the certificate of service are included in the documents sup-
porting the General Counsel’s motion, showing the dates as alleged,
and the Respondent does not contest the authenticity of these docu-
ments.
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to bargain with New York State
United Teachers/American Federation of Teachers,
AFL–CIO, as the exclusive bargaining 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 fol-
lowing bargaining unit:
INCLUDED: All adjunct faculty members, part-time
instructors, and all adjunct faculty members and part-
time instructors who work in a non-supervisory dual
capacity for the Employer, employed by the Employer.
EXCLUDED: All other employees, including adjunct
faculty and part-time instructors employed in the
School of Law, all full-time faculty, casual employees,
independent contractors, guards and supervisors within
the meaning of the Act.
PACE UNIVERSITY