University of Southern California

National Labor Relations Board - Board Decisions

Jun 7, 2017

365 NLRB No. 89 (N.L.R.B. 2017)

365 NLRB No. 89
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.
University of Southern California and Service Em-
ployees International Union (SEIU), Local 721.
Cases 31–CA–178831 and 31–CA–192125
June 7, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
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 and amended charges
filed on June 20, July 14, and August 4, 2016, respective-
ly, and a charge filed on January 26, 2017, by Service
Employees International Union (SEIU), Local 721 (the
Union), the General Counsel issued the consolidated
complaint on February 9, 2017, alleging that University
of Southern California (the Respondent) has violated
Section 8(a)(5) and (1) of the Act by refusing the Union's
request to recognize and bargain with it following the
Union's certification in Case 31–RC–164868. (Official
notice is taken of the record in the representation pro-
ceeding as defined in the Board’s Rules and Regulations,
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 com-
plaint, and asserting affirmative defenses.
On March 17, 2017, the General Counsel filed a Mo-
tion for Summary Judgment. On March 20, 2017, 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
and opposition to the motion for summary judgment, and
the General Counsel filed a reply.
Ruling on Motion for Summary Judgment
The Respondent admits its refusal to bargain, but con-
tests 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 certified unit is comprised of faculty who are mana-
gerial employees outside the coverage of the Act, and
that the Board’s Final Rule regarding the Board’s elec-
tion processes is invalid.
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 has it shown any special cir-
cumstances that would require the Board to reexamine
the decision made in the representation proceeding.1 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 Motion for Summary Judg-
ment.2
On the entire record, the Board makes the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a Cali-
fornia corporation with an office and place of business in
Los Angeles, California, and has been engaged in the
business of providing higher education.
In conducting its operations during the 12-month peri-
od ending December 24, 2015, the Respondent derived
gross revenues in excess of $1 million and purchased and
received goods and materials valued in excess of $5000
directly from points located outside the State of Califor-
nia.
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 representation election held by mail bal-
lot from January 13 through January 29, 2016, the Union

1 In its response to the Notice to Show Cause and opposition to the
Motion for Summary Judgment, the Respondent argues that special
circumstances call for the reexamination of the decision in the underly-
ing representation proceeding by a fully constituted five-member
Board. The Respondent asserts that the representation decision contra-
dicts representations the Board made to the Supreme Court in NLRB v.
Yeshiva University, 444 U.S. 672 (1980), and it overrules, sub silentio,
post-Yeshiva jurisprudence. Because the arguments made in the oppo-
sition were or could have been raised in the underlying representation
proceeding, we find that the Respondent has not shown special circum-
stances warranting relitigation of the representation case.
2 Chairman Miscimarra would have granted review in the underly-
ing representation proceeding, finding that the request for review raised
substantial issues warranting review regarding the Regional Director’s
finding that the Respondent’s nontenure track faculty are not manageri-
al employees outside the coverage of the Act, as well as the Regional
Director’s denial of the Respondent’s motion to reopen the record and
for reconsideration. While he remains of that view, he agrees that the
Respondent has not raised any new matters that are properly litigable in
this unfair labor practice proceeding and that summary judgment is
appropriate, with the parties retaining their respective rights to litigate
relevant issues on appeal.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
was certified on February 10, 2016,3 as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit:
INCLUDED: All full-time and part-time non-tenure
track faculty who are employed by the University of
Southern California and who teach at least one credit-
earning class, section, lesson, or lab within the academ-
ic unit known as the USC Roski School of Art and De-
sign at the Employer's instructional facilities at the
University Park Campus or at the Graduate Fine Arts
Building, located at 3001 South Flower Street, Los An-
geles, California 90007.
EXCLUDED: All tenured or tenure-track faculty; all
faculty whose primary teaching responsibilities are
within an academic unit other than the USC Roski
School of Art and Design; all faculty whose primary
area of practice and/or scholarship is outside the fol-
lowing areas: ceramics, critical studies, design, inter-
media, painting and drawing, photography, printmak-
ing, or sculpture; all faculty regularly employed by the
Employer at any location other than the University
Park Campus or the Graduate Fine Arts Building; all
faculty teaching online courses exclusively (regardless
of location); all emeritus faculty; all registrars and li-
brarians; all Athletic Department coaches; all graduate
students; all post-doctoral scholars; all lab assistants,
graduate assistants, clinical fellows, teaching assistants,
and research assistants; all mentors who do not have
teaching responsibilities; all department chairs, regard-
less of their faculty status; all administrators, including
those who have teaching responsibilities; the President
of the University; the Provost; all Associate Provosts,
Vice Provosts, and Vice Presidents; all Deans, Associ-
ate Deans and Assistant Deans, regardless of their fac-
ulty status; all non-faculty employees; all volunteers;
all other represented employees; and all managers, su-
pervisors, and guards as defined 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 letters dated April 7, 2016, and January 6, 2017,
the Union requested that the Respondent recognize and
bargain collectively with it as the exclusive collective-
bargaining representative of the unit. Since about May
17, 2016, the Respondent has failed and refused to do so.

3 On December 30, 2016, the Board (then-Member Miscimarra dis-
senting) denied the Respondent’s Request for Review. 365 NLRB No.
11 (2016).
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 May 17, 2016, 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, University of Southern California, Los An-
geles, California, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
Service Employees International Union (SEIU), Local
721 as the exclusive collective-bargaining representative
of the employees in the bargaining 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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit on terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
INCLUDED: All full-time and part-time non-tenure
track faculty who are employed by the University of
UNIVERSITY OF SOUTHERN CALIFORNIA 3
Southern California and who teach at least one credit-
earning class, section, lesson, or lab within the academ-
ic unit known as the USC Roski School of Art and De-
sign at the Employer's instructional facilities at the
University Park Campus or at the Graduate Fine Arts
Building, located at 3001 South Flower Street, Los An-
geles, California 90007.
EXCLUDED: All tenured or tenure-track faculty; all
faculty whose primary teaching responsibilities are
within an academic unit other than the USC Roski
School of Art and Design; all faculty whose primary
area of practice and/or scholarship is outside the fol-
lowing areas: ceramics, critical studies, design, inter-
media, painting and drawing, photography, printmak-
ing, or sculpture; all faculty regularly employed by the
Employer at any location other than the University
Park Campus or the Graduate Fine Arts Building; all
faculty teaching online courses exclusively (regardless
of location); all emeritus faculty; all registrars and li-
brarians; all Athletic Department coaches; all graduate
students; all post-doctoral scholars; all lab assistants,
graduate assistants, clinical fellows, teaching assistants,
and research assistants; all mentors who do not have
teaching responsibilities; all department chairs, regard-
less of their faculty status; all administrators, including
those who have teaching responsibilities; the President
of the University; the Provost; all Associate Provosts,
Vice Provosts, and Vice Presidents; all Deans, Associ-
ate Deans and Assistant Deans, regardless of their fac-
ulty status; all non-faculty employees; all volunteers;
all other represented employees; and all managers, su-
pervisors, and guards as defined in the Act.
(b) Within 14 days after service by the Region, post at
its facility in Los Angeles, California, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice,
on forms provided by the Regional Director for Region
31, after being signed by the Respondent's authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous plac-
es, including all places where notices to employees are
customarily posted. In addition to physical 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 Respondent
customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respond-

4 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."
ent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since May 17, 2016.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 31 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. June 7, 2017
______________________________________
Philip A. Miscimarra, Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, 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
violated 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 Service Employees International Union (SEIU),
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Local 721 as the exclusive collective-bargaining repre-
sentative of our employees in the bargaining 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 full-time and part-time non-tenure
track faculty who are employed by us and who teach at
least one credit-earning class, section, lesson, or lab
within the academic unit known as the USC Roski
School of Art and Design at our instructional facilities
at the University Park Campus or at the Graduate Fine
Arts Building, located at 3001 South Flower Street, Los
Angeles, California 90007.
EXCLUDED: All tenured or tenure-track faculty; all
faculty whose primary teaching responsibilities are
within an academic unit other than the USC Roski
School of Art and Design; all faculty whose primary
area of practice and/or scholarship is outside the fol-
lowing areas: ceramics, critical studies, design, inter-
media, painting and drawing, photography, printmak-
ing, or sculpture; all faculty regularly employed by us
at any location other than the University Park Campus
or the Graduate Fine Arts Building; all faculty teaching
online courses exclusively (regardless of location); all
emeritus faculty; all registrars and librarians; all Athlet-
ic Department coaches; all graduate students; all post-
doctoral scholars; all lab assistants, graduate assistants,
clinical fellows, teaching assistants, and research assis-
tants; all mentors who do not have teaching responsibil-
ities; all department chairs, regardless of their faculty
status; all administrators, including those who have
teaching responsibilities; the President of the Universi-
ty; the Provost; all Associate Provosts, Vice Provosts,
and Vice Presidents; all Deans, Associate Deans and
Assistant Deans, regardless of their faculty status; all
non-faculty employees; all volunteers; all other repre-
sented employees; and all managers, supervisors, and
guards as defined in the Act.
UNIVERSITY OF SOUTHERN
CALIFORNIA
The Board’s decision can be found at
www.nlrb.gov/case/31-CA-178831 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.