Worcester Polytechnic Institute

National Labor Relations Board - Board Decisions

Dec 20, 1973

207 N.L.R.B. 1061 (N.L.R.B. 1973)

WORCESTER POLYTECHNIC INSTITUTE
Worcester Polytechnic Institute , Employer -Petitioner
and Building Service Employees' International
Union Local 254, AFL-CIO. Case 1-UC-125
December 20, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, KENNEDY,
AND PENELLO
Upon a petition for clarification of unit duly filed
by Worcester Polytechnic Institute on June 13, 1973,
a hearing was held on July 3, 1973, before Hearing
Officer G. Rosalyn Johnson of the National Labor
Relations Board. On July 11, 1973, the Acting
Regional Director for Region 1 issued an order
transferring the case to the Board for decision.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate the
purposes of the Act to assert jurisdiction herein. The
Employer, Worcester Polytechnic Institute, is a
private, nonprofit educational institution which
operates in Worcester, Massachusetts. Gross annual
revenue for use with no restrictions exceeds $1
million. Annually it receives material valued in
excess of $50,000 directly from points outside of
Massachusetts.
2. The labor organization involved represents
certain employees of the Employer.
3. No question affecting commerce exists con-
cerning the representation of such employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
This case presents the issue of whether the
National Labor Relations Board has jurisdiction to
clarify the existing, recognized unit of university
employees, containing guards and nonguards, where
the unit was certified by the Massachusetts Labor
Relations Commission at a time when the National
Labor Relations Board would not have asserted
jurisdiction over the Employer.
The Employer contends that Section 9(b)(3) of the
Act proscribes the Union from representing both
nonguard employees and guard employees in the
same unit.
The Union does not contest the allegation of the
petition that the unit includes both nonguards and
guards within the meaning of the Act. Rather, it
argues only that the National Labor Relations Board
does not have the right to "vitiate" a legal action of
the Massachusetts Labor Relations Commission
1 The Trustees of Columbia University in the City of New York, 97 NLRB
424.
1061
which acted upon the "rights and rules then existing
between the Massachusetts Commission and the
National Labor Relations Board."
For reasons discussed below, we will clarify the
unit to exclude the guards.
On September 26, 1969, the Commonwealth of
Massachusetts ordered an election by secret ballot,
among certain of the Employer's employees, to be
held on October 9. The appropriate unit stipulated
by the parties and approved by the Massachusetts
Labor Relations Commission 'was a universitywide
nonprofessional unit excluding supervisors, profes-
sional employees, temporary employees, part-time
employees, and students.
The election was held by secret ballot on October
9. Seventy-two employees were eligible to vote, and
69 ballots were cast. Of the ballots cast 38 were for,
and 31 against, the Union. As a result of the election,
the Massachusetts Labor Relations Commission
certified the Union for bargaining purposes on
October 31, 1969.
The parties negotiated and on January 4, 1970,
signed a collective-bargaining agreement which
remained in full force and effect until June 30, 1971.
On November 15, 1971, another contract was
reached to continue in full force and effect through
June 30, 1973. The parties are presently negotiating
for a new contract but have not yet reached final
agreement.
On June 13, 1973, the Employer filed the present
unit clarification petition with the National Labor
Relations Board, seeking to clarify the unit by
excluding guards. The petition states that the
proposed clarification would reduce the size of the
unit from 71 to 60.
The only differences between the employees to be
excluded under the instant petition and the employ-
ees who were excluded under the Massachusetts
certification are the two categories, "patrolmen" and
"sergeant."
The Massachusetts Labor Relations Commission's
assertion of jurisdiction over the Employer in 1969
was valid. Section 14(c) of the Act gives the States
authority to assert jurisdiction over cases where the
National Labor Relations Board declines jurisdic-
tion. While at that time we declined to take
jurisdiction over private, nonprofit colleges and
universities, we reversed our policy in late 1970 and
began to assert jurisdiction over such employers.2
Since the Massachusetts Labor Relations Commis-
sion took jurisdiction over the unit of the Employer
involved in the instant case in the fall of 1969 at a
time when we would have declined to take jurisdic-
tion over the Employer, the Massachusetts Labor
2 Cornell University, 183 NLRB 329.
207 NLRB No. 157
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Commission 's assertion of jurisdiction was
valid.
We have in other cases clarified an established unit
so as to exclude guards . In Libbey-Owens-Ford Glass
Company, 169 NLRB 126, as an incident to ordering
a self-determination election at two plants to see
whether the employees wished to join a multiplant
unit of eight other plants , we noted in passing that
the multiplant unit and one of the voting units
contained guards and nonguards and we clarified the
units so as to exclude guards. In Sonotone Corpora-
tion, 100 NLRB 1127 , we likewise clarified the
established unit so as to exclude guards.
It is clear that we have the power to clarify an
existing unit represented by a recognized bargaining
representative. National Labor Relations Board
Rules and Regulations, Series 8 , as amended, Section
102.60(b). Manitowoc Shipbuilding, Inc., and The
Manitowoc Company, Inc., 191 NLRB 786; Brother-
hood of Locomotive Firemen and Enginemen, 145
NLRB 1521. The record shows the Union in the
instant case , in effect , is a currently recognized
collective-bargaining representative for the purposes
of the National Labor Relations Act. The Employer
and the Union have successfully executed and
operated under two successive collective -bargaining
agreements and are presently negotiating for a third
contract. Since we have authority to clarify a unit
represented by a recognized bargaining representa-
tive under the authority cited supra, we shall do so in
the instant case.
ORDER
It is hereby ordered that the existing, recognized
unit of guard and nonguard employees employed by,
Worcester Polytechnic Institute, Worcester, Massa-
chusetts , and represented by Building Service Em-
ployees' International Union, Local 254, AFL-CIO,
be, and it hereby is, clarified to exclude the job
classifications patrolmen , sergeant , and guards as
defined in the Act.
MEMBER KENNEDY, dissenting:
Because the state certification and the Employer's
subsequent recognition and bargaining with the
Union resulted from an election in which guards and
nonguard employees were permitted to vote and the
votes of those guards may have established the
Union 's majority status in the election, I would not
issue an order of this Board to clarify this statutorily
inappropriate unit.
It is clear that, if the Board had asserted its
jurisdiction over this Employer in 1969, we would
not have permitted guards and nonguard employees
to vote in the same election , and we could not have
found such a unit to be appropriate under the Act.
We would also have been prohibited by Section
9(b)(3) from issuing a certification to the Union in a
bargaining unit of guards where that Union admits
employees other than guards to membership . In these
circumstances , I do not think that the Board should
give weight to the Union's recognition by the
Employer in an inappropriate bargaining unit follow-
ing an election in which the votes of guards may have
determined the outcome of the election.
In my view, the Board 's unit clarification proce-
dures are not the proper method for resolving this
matter. The parties should utilize the Board's
representation procedures.
Accordingly , I would dismiss the petition.