Salem College

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 1129 (N.L.R.B. 1979)

Salem College and West Virginia Education Associ-
ation. Case 6-CA-12534
September 28, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
Upon a charge filed on July 6, 1979, and an
amended charge filed on July 19, 1979, by West Vir-
ginia Education Association, herein called the Union,
and duly served on Salem College, herein called Re-
spondent, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region
6, issued a complaint on July 20, 1979, against Re-
spondent, amended on July 23, 1979, alleging that
Respondent had engaged in and was engaging in un-
fair 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, amend-
ment to the complaint, and notice of hearing before
an administrative 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 May 10, 1979, fol-
lowing a Board election in Case 6-RC-8336, the
Union was duly certified as the exclusive collective-
bargaining representative of Respondent's employees
in the unit found appropriate;' and that, commencing
on or about July 2, 1979, and at all times thereafter,
Respondent has refused, and continues to date to re-
fuse, to bargain collectively with the Union as the
exclusive bargaining representative, although the
Union has requested and is requesting it to do so. On
July 26, 1979, Respondent filed its answer to the com-
plaint admitting in part, and denying in part, the alle-
gations in the complaint.
On August 31, 1979, counsel for the General Coun-
sel filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on September 6, 1979,
the Board issued an order transferring the proceeding
to the Board and a Notice To Show Cause why the
General Counsel's Motion for Summary Judgment
should not be granted. Respondent has filed a reply
to the Motion for Summary Judgment.
I Oflicial notice is taken of the record in the representation proceeding,
Case 6-RC-8336, 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 Electrosysems, Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th Cir.
1968): Golden Age Beverage Co.. 167 NLRB 151 (1967), enfd. 415 F.2d 26
(5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573 (D.C.Va. 1967):
Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (7th Cir. 1968): Sec.
9(d) of the NLRA, as amended.
SALEM COLLEGE
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:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and reply to the Mo-
tion for Summary Judgment, Respondent attacks the
validity of the Union's certification on the grounds
that the unit certified herein is inappropriate for pur-
poses of collective bargaining, and therefore it has not
committed the unfair labor practices alleged in the
complaint. Specifically, it asserts that its full-time fac-
ulty are managerial and supervisory employees
within the meaning of the Act.
Our review of the record herein, including the rec-
ord in Case 6-RC-8336, indicates that on October 16,
1978, the Union filed a petition in which it sought to
represent certain of Respondent's employees. On
April 9, 1979, the National Labor Relations Board
issued an unpublished Decision and Direction of
Election rejecting Respondent's contentions that its
full-time faculty are managerial and supervisory and
directing an election be held in the following appro-
priate unit:
All full-time teaching faculty including division
coordinators and chairpersons employed by Sa-
lem College at its Salem, West Virginia, campus;
excluding all other employees, office clerical em-
ployees, the President of the College, deans and
assistant deans, administrators, guards and su-
pervisors as defined in the Act.
Thereafter, an election was held on May 2, 1979, in
which a majority of employees in the above-described
unit designated the Union as their representative for
the purpose of collective bargaining with Respondent.
No objections were filed. As a result of the election,
the Regional Director issued a Certification of Repre-
sentative on May 10, 1979, certifying the Union as
the exclusive collective-bargaining representative in
the appropriate unit.
It is well settled that in the absence of newly dis-
covered or previously 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.2
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior repre-
2 See Pittsburgh Plate Glass Co. v. NL.RB. 313 USs. 146. 162 (1941)1
Rules and Regulations of the Board, Secs 102 67(f) and 102.69(c).
245 NLRB No. 145
1129
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentation proceeding, and Respondent does not offer
to adduce at a hearing any newly discovered or previ-
ously unavailable evidence, nor does it allege that any
special circumstances exist herein which would re-
quire the Board to reexamine the decision made in
the representation proceeding. We therefore find that
Respondent has not raised any issue which is prop-
erly litigable in this unfair labor practice proceeding.
Accordingly, we grant the Motion for Summary
Judgment.
On the basis of the entire record, the Board makes
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Salem College is a West Virginia corporation with
an office and place of business located in Salem, West
Virginia, where it is engaged in the operation of a
private liberal arts college. In the course of its opera-
tions, Respondent annually derives gross revenue in
excess of $1 million and purchases and receives at its
Salem, West Virginia, facility products, goods, and
materials valued in excess of $5,000 either directly
from other enterprises located outside West Virginia
or from enterprises within West Virginia, which en-
terprises had received the said products, goods, and
materials directly from points outside West Virginia.
We find, on the basis of the foregoing, that Respon-
dent 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 INVOLVED
West Virginia Education Association is a labor or-
ganization 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 Respondent constitute
a unit appropriate for collective-bargaining purposes
within the meaning of Section 9(b) of the Act:
All full-time teaching faculty including division
coordinators and chairpersons employed by Sa-
lem College at its Salem, West Virginia, campus;
excluding all other employees, office clerical em-
ployees, the President of the College, deans and
assistant deans, administrators, guards and su-
pervisors as defined in the Act.
2. The certification
On May 2, 1979, 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 bargaining
with Respondent. The Union was certified as the col-
lective-bargaining representative of the employees in
said unit on May 10, 1979, and the Union continues
to be such exclusive representative within the mean-
ing of Section 9(a) of the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about June 25, 1979, and at all
times thereafter, the Union has requested Respondent
to bargain collectively with it as the exclusive collec-
tive-bargaining representative of all the employees in
the above-described unit. Commencing on or about
July 2, 1979, and continuing at all times thereafter to
date, Respondent has refused, and continues to re-
fuse, to recognize and bargain with the Union as the
exclusive representative for collective bargaining of
all employees in said unit.
Accordingly, we find that Respondent has, since
July 2, 1979, and at all times thereafter, refused to
bargain collectively with the Union as the exclusive
representative of the employees in the appropriate
unit, and that, by such refusal, Respondent has en-
gaged 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 the 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 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
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SALEM COLLEGE
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 commences
to bargain in good faith with the Union as the recog-
nized bargaining representative in the appropriate
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 (5th
Cir. 1964), cert. denied 379 U.S. 817; Burnett Con-
struction 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. Salem College is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. West Virginia Education Association is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All full-time teaching faculty including division
coordinators and chairpersons employed by Salem
College at its Salem, West Virginia, campus; exclud-
ing all other employees, office clerical employees, the
President of the College, deans and assistant deans,
administrators, guards and supervisors, as defined in
the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act.
4. Since May 10, 1979, 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 July 2, 1979, 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
in the exercise of the rights guaranteed them in Sec-
tion 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 are unfair labor practices affect-
ing 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 Rela-
tions Board hereby orders that the Respondent, Sa-
lem College, Salem, West Virginia, 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 West Virginia Education
Association as the exclusive bargaining representative
of its employees in the following appropriate unit:
All full-time teaching faculty including division
coordinators and chairpersons employed by Sa-
lem College at its Salem, West Virginia, campus;
excluding all other employees, office clerical em-
ployees, the President of the College, deans and
assistant deans, administrators, guards and su-
pervisors 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 understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at Salem, West Virginia, campus copies of
the attached notice marked "Appendix."3 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 6, after being duly signed by Respon-
dent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other
material.
3 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 b) 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"
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify the Regional Director for Region 6, in
writing, within 20 days from the date of this Order,
what steps Respondent has 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 West
Virginia Education Association 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 representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, 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 teaching faculty including divi-
sion coordinators and chairpersons employed
by Salem, West Virginia, campus; excluding
all other employees, office clerical employees,
the President of the College, deans and assist-
ant deans, administrators, guards and supervi-
sors as defined in the Act.
SALEM COLLEGE
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