Saint Francis College

National Labor Relations Board - Board Decisions

Jun 16, 1976

224 N.L.R.B. 907 (N.L.R.B. 1976)

SAINT FRANCIS COLLEGE 907
Saint Francis College and St Francis College Educa-
tion Association, Pennsylvania State Education As-
sociation/NEA Case 6-CA-8811
June 16, 1976
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
filed a response to Notice To Show Cause, entitled
"Reply Opposing General Counsel's Motion for
Summary Judgment and Respondent's (Saint Fran-
cis College) Motion to Dismiss Complaint and Grant
Oral Argument "
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
Upon a charge filed on November 26, 1975, by St
Francis College Education Association, Pennsylva-
nia State Education Association/NEA, herein called
the Union, and duly served on Saint Francis College,
herein called the Respondent, the General Counsel
of the National Labor Relations Board, by the Re-
gional Director for Region 6, issued a complaint and
notice of hearing on December 5, 1975, 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
With respect to the unfair labor practices, the com-
plaint alleges in substance that on June 2, 1975, fol-
lowing a Board election in Case 6-RC-7000, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate 1 and that, commenc-
ing or or about June 19, 1975, and at all times there-
after, Respondent has refused, and continues 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 On
December 17, 1975, Respondent filed its answer to
the complaint admitting in part, and denying in part,
the allegations in the complaint
On January 6, 1976, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment Subsequently, on January 20, 1976,
the Board issued an order transferring the proceed-
ing to the Board and a Notice To Show Cause why
the General Counsel's Motion for Summary Judg-
ment should not be granted Respondent thereafter
i Official notice is taken of the record in the representation proceeding
Case 6-RC-7000 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 (C A 4
1968) Golden Age Beverage Co 167 NLRB 151 (1967) enfd 415 F 2d 26
(C A 5 1969) Intertype Co v Penello 269 F Supp 573 (D C Va 1967)
Follett Corp 164 NLRB 378 (1967) enfd 397 F 2d 91 (C A 7 1968) Sec
9(d) of the NLRA
Rul'ng on the Motion for Summary Judgment
In its answer to the complaint and response to the
Notice To Show Cause, Respondent admits its refus-
al to bargain but attacks the Union's certification on
the basis of its objection to the appropriateness of the
bargaining unit for which the Union is certified Re-
spondent further contends that the unit determina-
tion in the representation case violates the first and
fifth amendments to the Constitution of the United
States, and violates the provisions and policies of the
various civil rights laws of the United States, particu-
larly Title VII of the Civil Rights Act of 1964
Review of the record herein, including the record
in Case 6-RC-7000, reveals that a petition was filed
by the Union on October 21, 1974, seeking, in sub-
stance, to represent all full-time and part-time faculty
at Saint Francis College, excluding all members of
the Province of the Most Sacred Heart of Jesus of the
Third Order Regular of Saint Francis of Penance,
herein called the Franciscans, who lack a community
of interest with other unit employees At the hearing
on the petition, Respondent contended the unit
should be broadened to include seven faculty mem-
bers who are members of the Franciscans and certain
other individuals Following the hearing, the Region-
al Director issued his Decision and Direction of
Election on March 4, 1975, in which he found that
the Franciscans Respondent sought to include were
properly to be excluded under authority of Seton Hill
College, 201 NLRB 1026 (1973), and that the other
individuals sought to be included were properly to be
excluded Accordingly, he directed an election in, ba-
sically, the unit sought by the Union Respondent
filed a timely request for review of the Regional
Director's decision with the Board in Washington,
D C, contending that the Regional Director erred in
determining the Franciscans lacked a community of
2 Respondents request for oral argument is denied as the General
Counsels motion and the Respondents response to the Notice To Show
Cause and the briefs amici curiae of the Pennsylvania Association of Col
leges and Universities and the National Catholic Educational Association
adequately present the issues and the positions of the parties
224 NLRB No 125
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest with the lay faculty and, therefore, excluding
the Franciscans from the appropriate bargaining
unit 3 Respondent further submitted that exclusion of
the Franciscans violates, inter alga, the first and fifth
amendments of the Constitution and the provisions
of the various civil rights acts After considering
Respondent's request for review, the Board, by tele-
graphic order dated March 28, 1975, denied the re-
quest as it raised no substantial issues warranting re-
view
Thereafter, on April 8, 1975, an election was con-
ducted in the bargaining unit found to be appropri-
ate, which the Union won 4 On June 2, 1975, the
Union was certified as the exclusive collective-bar-
gaining representative of the employees in the unit
found to be appropriate
It thus appears that Respondent is attempting to
relitigate herein issues which were raised and decided
in the underlying representation case It is well set-
tled that in the absence of newly discovered or previ-
ously 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 5
All issues raised by the Respondent in this pro-
ceeding were or could have been litigated in the prior
representation proceeding, and the Respondent does
not offer to adduce at a hearing any newly discov-
ered or previously unavailable evidence, nor does it
allege that any special circumstances exist herein
which would require the Board to reexamine the de-
cision made in the representation proceeding We
therefore find that the Respondent has not raised
any issue which is properly litigable in this unfair
labor practice proceeding 6 We shall, accordingly,
deny Respondent's motion to dismiss the complaint
3 Respondent did not challenge or request review of the Regional
Directors decision in any other respect
° No objections to the election were filed by either party but there were
four challenged ballots which were sufficient to affect the results of the
election On May 27 1975 Respondent and the Union settled all issues
relating to the challenged ballots by stipulation One challenged individual
was stipulated to be ineligible to vote in the election and three challenged
individuals were stipulated to be eligible to vote The ballots of the three
eligible employees were opened and counted and the revised tally of ballots
revealed 33 votes for the Union and 31 votes against
5 See Pittsburgh Plate Glass Co v N LRB 313 U S 146 162 (1941)
Rules and Regulations of the Board Secs 102 67(f) and 102 69(c)
6 Amuus Pennsylvania Association of Colleges and Universities argues
that first the Board should reconsider the exclusion of the Franciscans
from the appropriate bargaining unit and second the exclusion of the
Franciscans results in religious discrimination in violation of Title VII of the
Civil Rights Act of 1964 Amuus National Catholic Educational Association
argues that exclusion of the Franciscans constitutes religious discrimination
in violation of the first and fifth amendments to the Constitution As noted
above these issues were raised in substance in the underlying represents
tion case and may not be relrtigated in this unfair labor practice proceeding
Further we do not find the circumstances of this case warrant granting the
request for reconsideration of the representation case determinations
and grant the General Counsel's Motion for Summa-
ry Judgment I
On the basis of the entire record, the Board makes
the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent, a Pennsylvania corporation, is a pri-
vate nonprofit college with its offices and education-
al facilities located in Loretto, Pennsylvania During
the past 12 months, a representative period, Re-
spondent ' s gross revenues exceeded $ 1 million, of
which at least $50,000 was received from points out-
side Pennsylvania
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material here-
in, 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 assertjuris-
diction herein
II THE LABOR ORGANIZATION INVOLVED
St Francis College Education Association, Penn-
sylvania State Education Association/NEA, is a la-
bor organization within the meaning of Section 2(5)
of the Act
III THE UNFAIR LABOR PRACTICES
A The Representation Proceeding
I 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
All full-time faculty members including de-
partment chairmen, librarians and the Director
of the Counseling Center employed at the Saint
Francis College, Loretto, Pennsylvania, facility,
excluding all members of the Province of the
Most Sacred Heart of Jesus of the Third Order
Regular of Saint Francis of Penance, the Direc-
tor of Upward Bound, the athletic director, the
assistant athletic director, the basketball coach,
the assistant basketball coach, the head librari-
an, confidential employees, managerial employ-
ees, and guards and supervisors as defined in the
Act
In view of our determination herein we find it unnecessary to rule on
counsel for the General Counsels motion to strike Respondents defense
SAINT FRANCIS COLLEGE 909
2 The certification
On April 8, 1975, a majority of the employees of
Respondent in said unit, in a secret ballot election
conducted under the supervision of the Regional Di-
rector for Region 6, designated the Union as their
representative for the purpose of collective bargain-
ing with the Respondent The Union was certified as
the collective-bargaining representative of the em-
ployees in said unit on June 2, 1975, 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 June 3, 1975, and at all
times thereafter, the Union has requested the Re-
spondent to bargain collectively with it as the exclu-
sive collective-bargaining representative of all the
employees in the above-described unit Commencing
on or about June 19, 1975, and continuing at all
times thereafter to date, the Respondent has refused,
and continues to refuse, to recognize and bargain
with the Union as the exclusive representative for
collective bargaining of all employees in said unit
Accordingly, we find that the Respondent has,
since June 19, 1975, 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, Respondent
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 EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce 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 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 Union as the
exclusive representative of all employees in the ap-
propriate 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 certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate unit See Mar-Jac Poultry Company, Inc, 136
NLRB 785 (1962), Commerce Company d/b/a Lamar
Hotel, 140 NLRB 226, 229 (1962), enfd 328 F 2d 600
(C A 5, 1964), cert denied 379 U S 817 (1964), Bur-
nett Construction Company, 149 NLRB 1419, 1421
(1964), enfd 350 F 2d 57 (CA 10, 1965)
The Board, upon the basis of the foregoing facts
and the entire record, makes the following
CONCLUSIONS OF LAW
1 Saint Francis College is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act
2 St Francis College Education Association,
Pennsylvania State Education Association/NEA, is a
labor organization within the meaning of Section
2(5) of the Act
3 All full-time faculty members including depart-
ment chairmen, librarians and the Director of the
Counseling Center employed at the Saint Francis
College, Loretto, Pennsylvania, facility, excluding all
members of the Province of the Most Sacred Heart
of Jesus of the Third Order Regular of Saint Francis
of Penance, the Director of Upward Bound, the ath-
letic director, the assistant athletic director, the bas-
ketball coach, the assistant basketball coach, the
head librarian, confidential employees, managerial
employees, and guards and supervisors as defined in
the Act, constitute a unit appropriate for the purpos-
es of collective bargaining within the meaning of Sec-
tion 9(b) of the Act
4 Since June 2, 1975, the above-named labor or-
ganization has been and now is the certified and ex-
clusive 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 June 19, 1975, 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, Respondent 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, Respondent
has interfered with, restrained, and coerced, and is
interfering with, restraining, and coercing, employees
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 mean-
ing 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 Re-
lations Board hereby orders that Respondent, Saint
Francis College, Loretto, Pennsylvania, 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 Saint Francis College
Education Association, Pennsylvania State Educa-
tion Association/NEA, as the exclusive bargaining
representative of its employees in the following ap-
propriate unit
All full-tune faculty members including de-
partment chairmen, librarians and the Director
of the Counseling Center employed at the Saint
Francis College, Loretto, Pennsylvania, facility,
excluding all members of the Province of the
Most Sacred Heart of Jesus of the Third Order
Regular of Saint Francis of Penance, the Direc-
tor of Upward Bound, the athletic director, the
assistant athletic director, the basketball coach,
the assistant basketball coach, the head librari-
an, confidential employees, managerial employ-
ees, and guards and supervisors as defined in the
Act
(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 under-
standing is reached, embody such understanding in a
signed agreement
(b) Post at its Loretto, Pennsylvania, facility, cop-
ies of the attached notice marked "Appendix " 8 Cop-
8 In the event that 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 National Labor Relations Board shall read Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board
ies of said notice, on forms provided by the Regional
Director for Region 6, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with St
Francis College Education Association, Penn-
sylvania State Education Association/NEA, 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 represen-
tative of all employees in the bargaining unit de-
scribed below, with respect to rates of pay, wag-
es, 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 including de-
partment chairmen, librarians and the Direc-
tor of the Counseling Center employed at the
Saint Francis College, Loretto, Pennsylvania,
facility, excluding all members of the Prov-
ince of the Most Sacred Heart of Jesus of the
Third Order Regular of Saint Francis of Pen-
ance, the Director of Upward Bound, the ath-
letic director, the assistant athletic director,
the basketball coach, the assistant basketball
coach, the head librarian, confidential em-
ployees, managerial employees, and guards
and supervisors as defined in the Act
SAINT FRANCIS COLLEGE