University of San Francisco

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 323 (N.L.R.B. 1984)

UNIVERSITY OF SAN FRANCISCO
University of San Francisco and University of San
Francisco Faculty Association, AFI, Local
4269. Case 20-CA-18245
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
Upon a charge filed by the University. of San
Francisco Faculty Association, AFT, Local 4269,
the Union, 25 July 1983, the General Counsel of
the National Labor Relations Board issued a com-
plaint 9 August 1983 against University of San
Francisco, the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor
Relations Act.
The complaint alleges that on 27 April 1983, fol-
lowing a Board election in Case 20-RC-15479, the
Union was certified as the exclusive collective-bar-
gaining representative of the Respondent's employ-
ees in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier Hotel,
265 NLRB 343 (1982).) The complaint further al-
leges that since 19 July 1983 the Respondent has
refused to bargain with the Union. On 17 August
1983 the Respondent filed its answer admitting in
part and denying in part the allegations in the com-
plaint.
On 15 December 1983 the General Counsel filed
a Motion for Summary Judgment. On 21 Decem-
ber 1983 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 delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on Motion for Summary Judgment
The Respondent's answer and its response to the
Notice to Show Cause attack the validity of the
certification on the basis of its contention that the
unit here is inappropriate and based on its objec-
tions to the election in the representation proceed-
ing. More specifically, the Respondent questions
the appropriateness of the part-time faculty unit,
the inclusion of clinical teaching assistants in the
unit, the Regional Director's failure to conduct a
hearing on its objections concerning the mail bal-
loting and the alleged lack of a thorough investiga-
tion of its objections on the mail balloting and fi-
nally contends that the complaint fails to state an
270 NLRB No. 57
adequate claim for relief under the Act. The Gen-
eral Counsel argues that all material issues have
been previously decided. We agree with the Gener-
al Counsel.
The record, including the record in Case 20-
RC-15479, reveals that a petition for an election
was filed 24 February 1982 after which a hearing
was held. Following the hearing, the Regional Di-
rector transferred the case to the Board for deci-
sion. The Board thereafter issued a Decision and
Direction of Election, 265 NLRB 1221 (1982), in
which it found, contrary to the Respondent's con-
tentions, that the following two units were appro-
priate for purposes of collective bargaining:
1. All part-time faculty members in the col-
leges of liberal arts, science, and business, and
the schools of education and nursing, including
clinical teaching assistants and all part-time
academically closely related employees at lo-
cations throughout the State of California; ex-
cluding all full-time employees, College of
Law employees and all other employees,
guards and supervisors as defined in the Act.
2. All part-time faculty members in the college
of professional studies at locations throughout
the State of California; excluding all full-time
employees, guards and supervisors as defined
in the Act.
A secret-ballot election was thereafter conducted
by U.S. mail under the supervision of the Regional
Director for Region 20 between 14 January and 7
February 1983. The tally of ballots in the unit for
liberal arts, science, business, and education and
nursing showed that, of approximately 297 eligible
voters, 85 cast ballots for and 61 cast ballots
against the Union. There were 3 void ballots and
56 challenged ballots which were sufficient to
affect the results of the election. Thereafter, the
parties agreed to a resolution of all but 16 of the
challenged ballots, and a revised tally of ballots
showed 91 votes for and 69 votes against the
Union, with 16 undetermined challenged ballots, a
number insufficient to affect the results.'
On 14 February 1983 the Respondent filed objec-
tions to the conduct of the election in the liberal
arts unit which, inter alia, were directed at the ap-
propriateness of the unit, and a claim that, through
a clerical error, eligible voters did not receive
properly addressed envelopes in which to return
their ballots. Without conducting a hearing, on 27
' In the unit for part-time faculty in the college of professional studies,
of approximately 235 eligible voters, 78 cast ballots for and 112 cast bal-
lots against the Union, with 5 challenged ballots which were insufficient
to affect the results. Neither party filed objections to this election, and
the results were certified by the Regional Director.
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 1983 the Regional Director overruled the
Respondent's objections in their entirety. Regard-
ing the alleged improperly addressed envelopes,
the Regional Director found that, at the ballot
count, the return envelopes for three ballots had
not been preaddressed to the Regional Office as
they should have been, but had been forwarded by
the Postal Service to the Board in Washington,
D.C., which in turn forwarded them to the Region
unopened and in time to be counted. The Respond-
ent claimed that, because a large number of voters
did not return ballots, there may have been other
ballots similarly sent without complete return ad-
dresses and which may have been lost in the postal
system or sent to some other location. In all the
circumstances, however, the Regional Director
found this claim about other ballots being lost to be
mere speculation and not a basis for setting aside
the election. The Regional Director also overruled
the objections to the appropriateness of the unit,
based on the Board's earlier Decision and Direc-
tion of Election, and certified the Union as the ex-
clusive bargaining representative.
On 9 May 1983 the Respondent filed with the
Board a request for review of the Regional Direc-
tor's decision overruling its objections to the con-
duct of the election. The Respondent reiterated its
allegations with regard to the inappropriateness of
the unit and the possibility of other improperly ad-
dressed ballots. In addition, the Respondent took
issue with the Regional Director's alleged failure to
conduct a full investigation into the balloting pro-
cedure to determine whether there in fact were
other errors on the part of the Regional Office. By
Order of 15 June 1983, the Board denied the re-
quest for review, finding that it raised no substan-
tial issues warranting review.
By letters dated 13 May and 1 July 1983, the
Union requested that the Respondent commence
bargaining with it as exclusive representative for
the unit of part-time faculty in liberal arts, science,
business, and education and nursing. 2 By letter
dated 19 July, the Respondent acknowledged re-
ceipt of the 1 July bargaining demand and stated
that "[a]s part-time faculty do not constitute an ap-
propriate unit for collective bargaining, the Univer-
sity respectfully declines your request to bargain at
this time." 3
2 While the complaint alleges that the Union's bargaining demand was
dated 19 July, exhibits accompanying the Motion for Summary Judgment
indicate that the Union's letter was dated I July, with 19 July being the
date of the Respondent's refusal to bargain. The Respondent admits the
accuracy of these exhibits.
3 In its answer, the Respondent denied that it has refused to bargain
with the Union, but admitted its refusal in its response to the Notice to
Show Cause. In addition, we reject the contention in the Respondent's
answer that the complaint fails to state facts sufficient to constitute a
claim for relief under the Act.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations.
All issues raised by the Respondent were or
could have been litigated in the prior representa-
tion proceeding. The Respondent does not offer to
adduce at a hearing any newly discovered and pre-
viously unavailable evidence, nor does it allege any
special circumstances that would require the Board
to reexamine the decision made in the representa-
tion proceeding. We therefore find that the Re-
spondent has not raised any issue that is properly
litigable in this unfair labor practice proceeding.
Accordingly we grant the Motion for Summary
Judgment.
On the entire record, the Board makes the fol-
lowing4
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent, a private,
nonprofit university with a main campus in San
Francisco, California, and offices and classes locat-
ed throughout the State of California, derived
gross revenues in excess of $1 million, excluding
contributions which, because of limitation by the
grantor, are not available for operating expenses,
and purchased goods, materials, and supplies
valued in excess of $5000 directly from points out-
side the State of California.
We find that the Respondent is an employer en-
gaged in commerce within the meaning of Section
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.
I1. ALLEGED UNFAIR LABOR PRACTICES
A. The Certification
Following the election held between 14 January
and 7 February 1983, the Union was certified 27
April 1983 as the collective-bargaining representa-
tive of the employees in the following appropriate
unit:
All part-time faculty members in the colleges
of liberal arts, science, and business, and the
4 Chairman Dotson did not participate in the underlying representation
proceeding.
324
UNIVERSITY OF SAN FRANCISCO
schools of education and nursing, including
clinical teaching assistants and all part-time
academically closely related employees at lo-
cations throughout the State of California; ex-
cluding all full-time employees, College of
Law employees and all other employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 13 May the Union has requested the Re-
spondent to bargain, and since 19 July the Re-
spondent has refused. We find that this refusal con-
stitutes an unlawful refusal to bargain in violation
of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 19 July 1983 to bargain
with the Union as the exclusive collective-bargain-
ing representative of 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 ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. Mar-Jac Poultry Co., 136 NLRB
785 (1962); Lamar Hotel, 140 NLRB 226, 229
(1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert.
denied 379 U.S. 817 (1964); 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, University of San Francisco, San
Francisco, California, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with University of San
Francisco Faculty Association, AFT, Local 4269
as the exclusive bargaining representative of the
employees in the bargaining unit.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All part-time faculty members in the colleges
of liberal arts, science, and business, and the
schools of education and nursing, including
clinical teaching assistants and all part-time
academically closely related employees at lo-
cations throughout the State of California; ex-
cluding all full-time employees, College of
Law employees and all other employees,
guards and supervisors as defined in the Act.
(b) Post at its facility in San Francisco, Califor-
nia, copies of the attached notice marked "Appen-
dix." 5 Copies of the notice, on forms provided by
the Regional Director for Region 20, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt 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 altered, defaced,
or covered by any other material.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
I 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al 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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with University
of San Francisco Faculty Association, AFT, Local
4269 as the exclusive representative of the employ-
ees in the bargaining unit.
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise 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 bargaining unit:
All part-time faculty members in the colleges
of liberal arts, science, and business, and the
schools of education and nursing, including
clinical teaching assistants and all part-time
academically closely related employees at lo-
cations throughout the State of California; ex-
cluding all full-time employees, College of
Law employees and all other employees,
guards and supervisors as defined in the Act.
UNIVERSITY OF SAN FRANCISCO
326