Saint Xavier University

National Labor Relations Board - Board Decisions

Mar 9, 2018

366 NLRB No. 31 (N.L.R.B. 2018)

366 NLRB No. 31
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.
Saint Xavier University and Saint Xavier University
Adjunct Faculty Organization, IEA-NEA. Case
13–CA–204564
March 9, 2018
DECISION AND ORDER
BY CHAIRMAN KAPLAN AND MEMBERS PEARCE
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 August 17,
2017, by Saint Xavier University Adjunct Faculty Organ-
ization, IEA-NEA (the Union), the General Counsel is-
sued the complaint on August 25, 2017, alleging that
Saint Xavier University (the Respondent) has violated
Section 8(a)(5) and (1) of the Act by refusing the Un-
ion’s request to recognize and bargain with it following
the Union’s certification in Case 13–RC–022025. (Offi-
cial notice is taken of the record in the representation
proceeding as defined in the Board’s Rules and Regula-
tions, Secs. 102.68 and 102.69(d). Frontier Hotel, 265
NLRB 343 (1982).) The Respondent filed an answer
admitting in part and denying in part the allegations in
the complaint and asserting affirmative defenses.
On September 13, 2017, the General Counsel filed a
Motion for Summary Judgment. On September 15,
2017, the Board issued an order transferring the proceed-
ing 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 it
contests 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 the authority to assert jurisdiction over
part-time faculty members at its self-identified religious
university.1

1 Chairman Kaplan and Member Emanuel did not participate in the
underlying representation proceeding, and they express no opinion on
the merits of the Board’s decision in that proceeding or on whether
Pacific Lutheran University, 361 NLRB 1404 (2014), was correctly
decided. Nonetheless, they agree that the Respondent has not raised
any new matters that are properly litigable in this unfair labor practice
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).
Accordingly, we grant the General Counsel's 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 university offering undergraduate and
graduate degrees at its campuses in Chicago and Orland
Park, Illinois (the Respondent’s facilities).
In conducting its operations during the past calendar
year, the Respondent has derived gross revenue from all
sources (excluding contributions which are, because of
limitations by the grantor, not available for use for oper-
ating expenses) in excess of $1 million of which at least
$50,000 was received directly from points outside the
State of Illinois.
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 election held from June 24 to
July 12, 2011, the Union was certified on September 30,
2016,2 as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit:
Included: All part-time faculty employed by the Em-
ployer at its campuses presently located at 3700 West
103rd Street, Chicago, Illinois and 18230 Orland
Parkway, Orland Park, Illinois, who teach at least three
credit hours per semester.
Excluded: All part-time faculty while teaching
coursework in the Pastoral Ministry Institute and mem-
bers in the School of Nursing, all part-time faculty

proceeding and that summary judgment is appropriate, with the parties
retaining their respective rights to litigate relevant issues on appeal.
2 On August 23, 2016, the Board denied in part the Respondent’s
request for review. 364 NLRB No. 85 (2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
teaching in the Department of Religious Studies, all
music tutors, all student supervisors in the School of
Education, independent contractors, confidential em-
ployees and managers, office clerical employees and
guards, professional employees and supervisors as de-
fined 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 emails dated May 22, June 6, June 29, and July 13,
2017, the Union requested that the Respondent meet and
bargain with it as the exclusive collective-bargaining
representative of the unit employees. Since about July
25, 2017, the Respondent has failed and refused to bar-
gain with 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 25, 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
(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, Saint Xavier University, Chicago and Or-
land Park, Illinois, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Saint Xavier University Adjunct Faculty Organization,
IEA-NEA (the Union) as the exclusive collective-
bargaining representative of the employees in the bar-
gaining 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
collective-bargaining representative of the employees in
the following appropriate unit on terms and conditions of
employment and, if an understanding is reached, embody
the understanding in a signed agreement:
Included: All part-time faculty employed by the Em-
ployer at its campuses presently located at 3700 West
103rd Street, Chicago, Illinois and 18230 Orland
Parkway, Orland Park, Illinois, who teach at least three
credit hours per semester.
Excluded: All part-time faculty while teaching
coursework in the Pastoral Ministry Institute and mem-
bers in the School of Nursing, all part-time faculty
teaching in the Department of Religious Studies, all
music tutors, all student supervisors in the School of
Education, independent contractors, confidential em-
ployees and managers, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
(b) Within 14 days after service by the Region, post at
its facilities in Chicago and Orland Park, Illinois, copies
of the attached notice marked “Appendix.”3 Copies of
the notice, on forms provided by the Regional Director
for Region 13, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal 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 Re-
spondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,

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.”
SAINT XAVIER UNIVERSITY 3
defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facilities
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since July 25, 2017.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 13 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. March 9, 2018
______________________________________
Marvin E. Kaplan, Chairman
______________________________________
Mark Gaston Pearce, 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 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
Choose not to engage in any of these protected
activities.
WE WILL NOT fail and refuse to recognize and bargain
with Saint Xavier University Adjunct Faculty Organiza-
tion, IEA-NEA (the Union) as the exclusive collective-
bargaining representative of our employees in the bar-
gaining 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:
Included: All part-time faculty employed by us at our
campuses presently located at 3700 West 103rd Street,
Chicago, Illinois and 18230 Orland Parkway, Orland
Park, Illinois, who teach at least three credit hours per
semester.
Excluded: All part-time faculty while teaching
coursework in the Pastoral Ministry Institute and mem-
bers in the School of Nursing, all part-time faculty
teaching in the Department of Religious Studies, all
music tutors, all student supervisors in the School of
Education, independent contractors, confidential em-
ployees and managers, office clerical employees and
guards, professional employees and supervisors as de-
fined in the Act.
SAINT XAVIER UNIVERSITY
The Board’s decision can be found at
https://www.nlrb.gov/case/13–CA–204564or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.