Pratt Institute

National Labor Relations Board - Board Decisions

Jul 8, 1981

256 N.L.R.B. 1166 (N.L.R.B. 1981)

1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pratt Institute and Pratt Institute Professional As-
sociation. Case 29-CA-7661
July 8, 1981
DECISION AND ORDER
Upon a charge filed on December 21, 1979, by
Pratt Institute Professional Association, herein
called the Union, and duly served on Pratt Insti-
tute, herein called Respondent, the General Coun-
sel of the National Labor Relations Board, by the
Regional Director for Region 29, issued a com-
plaint on January 15, 1980, against Respondent, al-
leging that Respondent had engaged in and was en-
gaging 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 Rela-
tions Act, as amended. Copies of the charge and
the complaint and notice of hearing before an ad-
ministrative law judge were duly served on the
parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on August 31,
1979, following a Board election in Case 29-RC-
4296, the Union was duly certified as the exclusive
collective-bargaining representative of Respond-
ent's employees in the unit found appropriate;' and
that, commencing on or about December 14, 1979,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On February 1, 1980,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On April 23, 1980, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on May 1,
1980, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause, and requested (1) that the Motion for Sum-
mary Judgment be denied; (2) that the complaint
be dismissed and a new election ordered, excluding
supervisors, managerial employees, and others al-
legedly improperly included in the unit; (3) that the
complaint be dismissed with a direction that the
I Official notice is taken of the record in the representatiorl proceed
ing, Case 29 RC-4296, as the term "record" is defined in Sees 102 68
and 102.6
9
(g) of he Board's Rules and Regulations, Series 8, as amended
See LTV Electroyvtems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683
(4th Cir., 1968: Golden .4ge Beverage C(., 167 NLRB 151 (1967), enfd
415 F.2d 26 (5th Cir 1969): IntertYpe Co. v Pl'encllo, 26 F Supp 573
(D.C.Va 1967); bollet! Corp., 164 NLRB 378 (1)67), enfd 147 F 2d 91
(7th Cir. 1968), Sec. 9(d) of the NL.RA, as amended
256 NLRB No. 175
representation case be reopened to take additional
testimony with respect to the supervisory status,
managerial status, outside funding, community of
interest, and/or laboratory issues; and (4) that such
further and different relief be granted as may be
proper.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on Motion for Summary Judgment
In its memorandum of law in opposition to the
Board's Notice To Show Cause, Respondent
argues that the motion should be denied and the
representation hearing be reopened to take testimo-
ny regarding the supervisory and managerial status
of certain employees, with a new election ordered,
based on the following reasons: (1) 19 employees
were included in the unit by virtue of the Board's
50 percent out-of-unit supervision test; (2) the di-
rector of career planning and personnel and the as-
sociate director of Pratt Institute Center for Com-
munity and Environmental Development
(PICCED) were allowed to vote subject to chal-
lenge, ignoring substantial uncontroverted evidence
that such employees were supervisory or manageri-
al; (3) external funding and a lack of community of
interest required the exclusion of certain positions
from the bargaining unit, i.e., particularly the ex-
clusion of the Higher Education Opportunity Pro-
gram (HEOP) and PICCED, as well as a coopera-
tive education coordinator; and (4) various manage-
rial positions were included in the unit contrary to
the U. S. Supreme Court's decisions in N.L.R.B. v.
BellAerospace Co., 416 U.S. 267 (1974).
While it is clear that Respondent's first three ar.-
guments have been duly considered and previously
found to be without merit by both the Regional
Director and the Board, Respondent's argument
that the Board lacks authority, under the Supreme
Court's Yeshiva decision, 2 to find the composition
of the unit here sought to be appropriate, merits
additional comment.
In the Yeshiva case, the Union sought to repre-
sent a unit of full-time faculty members employed
at 10 of the employer's 5 undergraduate and 8
graduate schools in New York City. Here, the unit
sought is composed of nonfaculty administrative
employees.
The Court found in Yeshiva that the record
showed that the faculty of each school acted in a
truly collegial capacity; deciding what courses
would be offered; when the courses would be
scheduled; and to whom they would be taught.
Such faculty also determined teaching methods,
' .VL R HB N: eslvo ,'liverity., 444 U S 672 (198))
PRATT INSTITUTE 1167
grading policies, and matriculation standards. They
decided which students would be admitted, re-
tained, and graduated, the size of the student body,
and the tuition to be charged, as well as questions
regarding faculty tenure and promotions.
There are significant differences between the in-
stant proceeding and the Yeshiva decision. Here,
the Union seeks to represent no faculty members;
rather, as the record shows, the unit sought con-
sists of nonacademic administrative employees. Nor
does the record show any sharing of collegial re-
sponsibility. Rather it indicates a group of adminis-
trative employees who in a routine manner in the
ordinary courses of employment carry out deci-
sions and implement standards already decided
upon by higher authority.
We also note that lower courts in discussing the
Yeshiva decision have expressed the belief that Ye-
shiva was meant to apply to a mature university,
where the faculty, acting in a collegial capacity,
governed the school in all its major aspects. 3
We are of the opinion, therefore, that the Court
in its Yeshiva decision did not intend to exclude
from the protection of Section 7 of the Act, admin-
istrative employees exercising their duties in an in-
stitute of the type dealt with in the instant proceed-
ing. It is also clear that the unit sought here differs
in classification and authority from that dealt with
in the Supreme Court's Yeshiva decision, and that
Respondent has not presented any special circum-
stances which would have dictated a different
result in the underlying representation case.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding with the exception of the
Yeshiva issue which we have found lacks merit, and
Respondent does not offer to adduce at a hearing
any newly discovered or previously unavailable
evidence, nor does it allege that any special cir-
cumstances exist herein which would require the
Board to reexamine the decision made in the repre-
sentation proceeding. We therefore find that Re-
spondent has not raised any issue which is properly
litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
I Stephens Institute v. .VL.R.B, 620 F2d 720, 726 9th Cir (198O)
Berry School. v. .L.R. R. 627 F2d t92 (5th Cir 1980)
4 See Pittsburgh Plate Glass (Co v NL.R.B. 3li U.S 146. 162 (1941)
Rules and Regulations of the Board. Secs 102 67(f and 102 6
9
(cl
On the basis of the entire record, the Board
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Pratt Institute, also referred to herein as the In-
stitute, is a private institution chartered by the
State of New York, with its central administrative
office and place of business in Brooklyn, New
York, where it is engaged in the operation of a pri-
vate, nonprofit, educational institution. The Em-
ployer, in the course and conduct of its operations,
annually derives gross revenues in excess of $1 mil-
lion and imports goods valued in excess of $50,000
directly from points outside the State of New
York. The parties stipulated, and we find, that the
Institute is engaged in commerce within the mean-
ing of the Act and that it will effectuate the poli-
cies of the Act to assert jurisdiction herein.
We find, on the basis of the foregoing, that Re-
spondent 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.
II. THE LABOR ORGANIZATION INVOI.VEI)
Pratt Institute Professional Association is a labor
organization within the meaning of Section 2(5) of
the Act.
111. THE UNFAIR L.ABOR PRACTICFS
A. The Representation Proceeding
1. The unit
The following employees of the Respondent con-
stitute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
Coordinator of Art Admissions, Admissions
and Financial Aid Counselors, Coordinator of
Transfer Evaluation, Coordinator of Graduate
Admissions and Financial Aid, Programmers
of the School of Art and Design, Placement
Counselors for Career Planning and Place-
ment, International Student Advisor, Bursar,
Coordinator of Data Processing, Coordinators
of Cooperative Education, Development Offi-
cer, Development Coordinator, Assistant to
the Dean of the School of Engineering, Assist-
ant to the Chairperson of the Foundation De-
partment of the School of Art and Design,
Counselor of the Higher Education Opportuni-
ty Program, Neighborhood Planner of the
PRATT INSTITUTE
On the basis of the entire record, the Board
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pratt Institute Center for Community and En-
vironmental Development, Writer-Fund Raiser
of the Pratt Institute Center for Community
and Environmental Development, Coordinator
of Student Affairs of the Pratt-New York
Phoenix School of Design, Staff Accountant,
Staff Writer of Public Affairs, Coordinator of
the Integrative Studies Program, Director of
Counseling and Student Development, Assist-
ant Nurse, Senior Planner of the Pratt Institute
Center for Community and Environmental De-
velopment, Architects of the Pratt Institute
Center for Community and Environmental De-
velopment, employed at its Brooklyn and
Manhattan locations, exclusive of all other em-
ployees, office clerical employees, confidential
employees, managerial employees, guards and
supervisors as defined in the Act.
2. The certification
On June 6, 1979, a majority of the employees of
Respondent in said unit, in a secret-ballot election
conducted under the supervision of the Regional
Director for Region 29, designated the Union as
their representative for the purpose of collective
bargaining with the Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on August 31, 1979, and the Union continues to be
such exclusive representative within the meaning of
Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about November 21, 1979,
and at all times thereafter, the Union has requested
the Respondent to bargain collectively with it as
the exclusive collective-bargaining representative
of all the employees in the above-described unit.
Commencing on or about December 14, 1979, and
continuing at all times thereafter to date, the Re-
spondent has refused, and continues to refuse, to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
December 14, 1979, and at all times thereafter, re-
fused to bargain collectively with the Union as the
exclusive representative of the employees in the ap-
propriate unit, and that, by such refusal, Respond-
ent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and
(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in
and is engaging in unfair labor practices within the
meaning 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 Union
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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period for cer-
tification as beginning on the date Respondent
commences to bargain in good faith with the
Union as the recognized bargaining representative
in the appropriate unit. See Mar-Jac Poultry Com-
pany, Inc., 136 NLRB 785 (1962); Commerce Com-
pany d/b/a Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); 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:
CONCLUSIONS OF LAW
1. Pratt Institute is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. Pratt Institute Professional Association is a
labor organization within the meaning of Section
2(5) of the Act.
3. Coordinator of Art Admissions, Admissions
and Financial Aid Counselors, Coordinator of
Transfer Evaluation, Coordinator of Graduate Ad-
missions and Financial Aid, Programmers of the
School of Art and Design, Placement Counselors
for Career Planning and Placement, International
Student Advisor, Bursar, Coordinator of Data
Processing, Coordinators of Cooperative Educa-
tion, Development Officer, Development Coordi-
nator, Assistant to the Dean of the School of Engi-
I'RATT INSTITUTE I 1h9
neering, Assistant to the Chairperson of the Foun-
dation Department of the School of Art and
Design, Counselor of the Higher Education Oppor-
tunity Program, Neighborhood Planner of the Pratt
Institute Center for Community and Environmental
Development, Writer-Fund Raiser of the Pratt In-
stitute Center for Community and Environmental
Development, Coordinator of Student Affairs of
the Pratt-New York Phoenix School of Design,
Staff Accountant, Staff Writer of Public Affairs,
Coordinator of the Integrative Studies Program,
Director of Counseling and Student Development,
Assistant Nurse, Senior Planner of the Pratt Insti-
tute Center for Community and Enviromental De-
velopment, Architects of the Pratt Institute Center
for Community and Environmental Development,
employed at its Brooklyn and Manhattan locations,
exclusive of all other employees, office clerical em-
ployees, confidential employees, managerial em-
ployees, guards and supervisors as defined in the
Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
4. Since August 31, 1979, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about December 14, 1979,
and at all times thereafter, to bargain collectively
with the above-named labor organization as the ex-
clusive bargaining representative of all the employ-
ees of Respondent in the appropriate unit, Reson-
dent 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 refusal to bargain, Respond-
ent has interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing,
employees in the exercise of the rights guaranteed
to 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Pratt Institute, Brooklyn and Manhattan, 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
conditions of employment with Pratt Institute Pro-
fessional Association as the exclusive bargaining
representative of its employees in the following
unit:
Coordinator of Art Admissions, Admissions
and Financial Aid Counselors, Coordinator of
Transfer Evaluation, coordinator of Graduate
Admissions and Financial Aid, Programmers
of the School of Art and Design, Placement
Counselors for Career Planning and Place-
ment, International Student Advisor, Bursar,
Coordinator of Data Processing, Coordinators
of Cooperative Education, Development Offi-
cer, Development Coordinator, Assistant to
the Dean of the School of Engineering, Assist-
ant to the Chairperson of the Foundation De-
partment of the School of Art and Design,
Counselor of the Higher Education Opportuni-
ty Program, Neighborhood Planner of the
Pratt Institute Center for Community and En-
vironmental Development, Writer-Fund Raiser
of the Pratt Institute Center for Community
and Environmental Development, Coordinator
of Student Affairs of the Pratt-New York
Phoenix School of Design, Staff Accountant,
Staff Writer of Public Affairs, Coordinator of
the Integrative Studies Program, Director of
Counseling and Student Development, Assist-
ant Nurse, Senior Planner of the Pratt Institute
Center for Community and Environmental De-
velopment, Architects of the Pratt Institute
Center for Community and Environmental De-
velopment, employed at its Brooklyn and
Manhattan locations, exclusive of all other em-
ployees, office clerical employees, confidential
employees, managerial employees, guards and
supervisors as defined in the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
PRATT INSTITUTE 6
117() I) CISIO()NS )1 NATIO()NAL ABOR RLATIONS OARD
(b) Post at its Brooklyn and Manhattan locations
copies of the attached notice marked "Appendix." 5
Copies of said notice, on forms provided by the
Regional director for Region 29, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 29,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
' I the erent Iha tllis Order is elllrced by a Judgment iof a United
States Crt of Appeals, the words in Ihe notice reading "Posted hb
Order of the Natitonal lhabor Relations oard" shall read "Posted Pursu-
ant to a Judgment of the United States Courl of Appeals Enforcing an
)rder oif the Nationlal abor Relalions Hoard
APPENDIX
NOTICE To EMPt.OYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WII.E NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Pratt Institute Professional Association,
as the exclusive representative of the employ-
ees in the bargaining unit described below.
WE WIl.I. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
WFE WILL, upon request, bargain with the
above-named Union, as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
Coordinator of Art Admissions, Admissions
and Financial Aid Counselors, Coordinator
of Transfer Evaluation, Coordinator of
Graduate Admissions and Financial Aid,
Programmers of the School of Art and
Design, Placement, Counselors for Career
Planning and Placement, International Stu-
dent Advisor, Bursar, Coordinator of Data
Processing, Coordinators of Cooperative
Education, Development Officer, Develop-
ment Coordinator, Assistant to the Dean of
the School of Engineering, Assistant to the
Chairperson of the Foundation Department
of the School of Art and Design, Counselor
of the Higher Education Opportunity Pro-
gram, Neighborhood Planner of the Pratt
Institute Center for Community and Envi-
ronmental Development, Writer-Fund
Raiser of the Pratt Institute Center for Com-
munity and Environmental Development,
Coordinator of Student Affairs of the Pratt-
New York Phoenix School of Design, Staff
Accountant, Staff Writer of Public Affairs,
Coordinator of the Integrative Studies Pro-
gram, Director of Counseling and Student
Development, Assistant Nurse, Senior Plan-
ner of the Pratt Institute Center for Commu-
nity and Environmental Development, Ar-
chitects of the Pratt Institute Center for
Community and Environmental Develop-
ment, employed at its Brooklyn and Manhat-
tan locations, exclusive of all other employ-
ees, office clerical employees, confidential
employees, managerial employees, guards
and supervisors as defined in the Act.
PRATT INSTITUTE