Yeshiva University

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 592 (N.L.R.B. 1977)

Yeshiva University and Yeshiva University Faculty
Association. Case 2-CA-14697
August 24, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND MURPHY
Upon a charge filed on February 4, 1977, by
Yeshiva University Faculty Association, herein
called the Union, and duly served on Yeshiva
University, herein called Respondent, the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 2, issued a
complaint and notice of hearing on February 22,
1977, against Respondent, alleging that Respondent
had engaged in and was engaging in unfair 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, 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
complaint alleges in substance that on or about
December 29, 1976, following a Board election in
Case 2-RC-16662 the Union was duly certified as
the exclusive collective-bargaining representative of
Respondent's employees in the unit found appropri-
ate; I and that, commencing on or about January 7,
1977, and at all times thereafter, Respondent has
refused, and continues to date to refuse, to bargain
collectively with the Union as the exclusive bargain-
ing representative, although the Union has requested
and is requesting it to do so. On March 7, 1977,
Respondent filed its answer to the complaint
admitting in part, and denying in part, the allegations
in the complaint.
On March 21, 1977, and on April I, 1977,
respectively, counsel for the General Counsel filed
directly with the Board a Motion for Summary
Judgment and issuance of Decision and Order and a
further petition for summary judgment and Decision
and Order. Subsequently, on April 8, 1977, Respon-
dent filed a statement in opposition to petition for
summary judgment. On April 12, 1977, 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 thereafter filed a response to
Notice To Show Cause entitled "Further Statement
i Official notice is taken of the record in the representation proceeding,
Case 2-RC 16662, 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
LTI' Electro. ,tems. Inc. 166 NLRB 938 (1967), enfd. 388 F.2d 683 (C.A. 4.
1968).: Golden 4ge Beverage Co., 167 NLRB 151 (1967), enfd. 415 F.2d 26
231 NLRB No. 98
YESHIVA UNIVERSITY
in Opposition to Petition for Summary Judgment
and Response to Notice To Show Cause."
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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, opposition to the
Motion for Summary Judgment, and response to the
Notice To Show Cause, Respondent essentially
attacks the Board's unit determination in the
underlying representation case and, accordingly, the
validity of the certification of the Union as the
exclusive bargaining representative of the employees
in that unit. The General Counsel contends, in effect,
that the denials and affirmative defenses set forth in
Respondent's answer raise no issues which have not
been litigated and determined by the Board in the
prior representation proceeding, Case 2-RC-16662,
and that there are no issues requiring a hearing. We
agree with the General Counsel.
Our review of the record herein, including that in
the representation proceeding, Case 2-RC-16662,
shows that, following a hearing before a Board
Hearing Officer on the status of certain faculty
personnel, the case was transferred to the Board for
decision. Respondent and the Union filed with the
Board briefs in support of their respective positions.
On December 5, 1975, the Board issued a Decision
and Direction of Election2 in which it concluded,
inter alia, that the unit consisting of all full-time
faculty members, excluding part-time faculty and
certain other faculty classifications, was appropriate,
as they were neither supervisors nor managerial
employees but professional employees. Accordingly.
the Board directed an election in that unit. An
election by mail and manual balloting was conducted
between November 16 and December 20, 1976. A
majority of the eligible voters cast ballots for the
Union and, in the absence of objections to conduct
affecting the election results, the Union was certified
by the Regional Director on December 29, 1976.
In its submissions, Respondent contends that the
Board's Decision and Direction of Election disre-
garded uncontroverted evidence, countenanced ab-
normally high supervisory ratios, applied an unjusti-
fied "ultimate authority" and "shared responsibility"
rationale and a baseless quantitative 50-percent test
(C.A. 5, 1969); Inlertype Co. v. Penello, 269 F.Supp. 573 (D.C.Va.. 1967);
Foilerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 (C A. 7. 1968) Sec.
9(d) of the NLRA, as amended.
2 221 NLRB 1053.
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the qualitative definition of supervisor embodied
in Section 2(11), and ignored the principles dealing
with managerial employees enunciated in Textron,3
in ruling, inter alia, that all full-time faculty mem-
bers, department chairmen and related titles, com-
mittee members and other miscellaneous supervisors
are not managerial or supervisory personnel under
Section 2(11) but are professional employees under
Section 2(12) of the Act. Further, Respondent alleges
that, by permitting the participation of supervisory
and managerial personnel in the election, the Board
itself destroyed the laboratory conditions thereof;
that the Board allowed the extent of organization to
be controlling when it excluded regular part-time
faculty members from the appropriate bargaining
unit in violation of Section 9(c)(5) of the Act; that by
so excluding the regular part-time faculty members
without first conducting a rulemaking proceeding
pursuant to the Administrative Procedure Act the
Board violated its obligations under that act; and
that the Board abused its discretion by including
terminal faculty members in the bargaining unit. We
find no merit in these contentions.
Except for the contention that the Board should
have engaged in rulemaking before excluding from
the unit regular part-time faculty, Respondent is
attempting to raise again and relitigate issues which
were, or could have been, raised and litigated in the
representation case 4 and this it may not do. Further,
we find no merit in Respondent's contention that the
Board contravened the Administrative Procedure
Act by excluding regular part-time faculty members
from the appropriate unit without first conducting a
rulemaking proceeding pursuant thereto. It is well
established that adjudicated cases may serve as
precedent, and that the Board may apply those
precedents5 to the parties in an adjudicatory pro-
ceeding.6
It is well settled that in the absence of newly
discovered 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.s
All issues raised by Respondent in this proceeding
were or could have been litigated in the prior
:3 N.L.R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S.
267 (1974).
4 The Board found that the arguments raised by Respondent in the
representation case proceeding were similar to those considered and rejected
by the Board in several earlier decisons. Northeastern University, 218 NLRB
247 (1975); University of Miami, 213 NLRB 634 (1974); New York University,
205 NLRB 4 (1973); Adelphi University. 195 NLRB 639 (1972); Fordham
Universit,, 193 NLRB 134 (1971); C. W Post Center of Long Island
University, 189 NLRB 904 (1971); Yeshiva University, 221 NLRB 1053, 1054,
fns. 5 and 6 (1975).
5 New York University, supra, and University of San Francisco, 207 NLRB
12 (1973).
i N.L.R.B. v. Wyman-Gordon Co., el al., 394 U.S. 759 (1969).
representation proceeding, and Respondent does not
offer to adduce at a hearing any newly discovered or
previously unavailable evidence, nor does it allege
that any special circumstances exist herein which
would require the Board to reexamine the decision
made in the representation proceeding. We therefore
find that Respondent has not raised any issue which
is properly litigable in this unfair labor practice
proceeding.8 We shall, accordingly, 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
Respondent is a private institution of higher
education chartered under the State of New York. It
maintains offices and educational facilities in the city
and State of New York, Borough of Manhattan.
During the past year, a representative period,
Respondent derived gross revenues from its opera-
tions in excess of $1 million from sources other than
donations and restricted contributions, of which
amounts in excess of $50,000 were derived directly
from sources located outside the State of New York.
We find, on the basis of the foregoing, that
Respondent 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
Yeshiva University Faculty Association is a labor
organization within the meaning of Section 2(5) of
the Act.
I See Pittsburgh Plate Glass Co. v. N.LR.B., 313 U.S. 146, 162 (1941);
Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).
8 Respondent has denied the allegations of the complaint concerning the
request and refusal to bargain. Attached to the General Counsel's further
petition are Exhs. K, L, and M which show that by letter dated January 5,
1977, received on January 7, 1977, the Union requested Respondent to
bargain and that previously, by letter dated December 27, 1976, Respondent
expressed its intention to obtain legal review of the Union's certification in
the courts. The contents of these exhibits which are uncontroverted
establish, and the Board finds, that on January 7, 1977, the Union requested
and Respondent refused to bargain. See Paramount General Hospital, Inc.,
223 NLRB 1017, 1019, fn. 8 (1976).
598
YESHIVA UNIVERSITY
111. THE UNFAIR LABOR PRACTICES
A. The Representation Proceeding
1. 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 faculty members appointed to the
University in the titles of professor, associate
professor, assistant professor, instructor, or any
adjunct or visiting thereof, department chairmen,
division chairmen, senior faculty and assistant
deans who are employed by the Employer at its
Campus, exclusive of faculty at Albert Einstein
College of Medicine, Sue Golding Graduate
School of Medical Sciences Yeshiva High School,
Rabbi Isaac Elchanan Theological Seminary,
Cantorial Training Institute, Community Service
Division, and Sephardic Community Activities
Program; part-time faculty; lecturers; principal
investigators; deans, acting deans and directors;
faculty whose initial and subsequent appointment
is subject to special funding derived in the main
from non-University funds or whose initial or
subsequent appointment is in connection with
special projects; the Registrar; visiting professors
(with effective faculty appointments at other
academic institutions); librarians; research assis-
tants; research associates; emeritus faculty not
actively engaged in teaching at the University;
officers of the University; all other administrative
and support personnel; guards, and all supervi-
sors as defined in Section 2(11) of the Act.
2. The certification
On December 20, 1976, a majority of the employ-
ees of Respondent in said unit, in a secret-ballot
election conducted under the supervision of the
Regional Director for Region 2, designated the
Union as their representative for the purpose of
collective bargaining with Respondent. The Union
was certified as the collective-bargaining representa-
tive of the employees in said unit on December 29,
1976, and the Union continues to be such exclusive
representative within the meaning of Section 9(a) of
the Act.
B. The Request To Bargain and Respondent's
Refusal
Commencing on or about January 7, 1977, and at
all times thereafter, the Union has requested Respon-
9 See fn. 8. supra.
dent to bargain collectively with it as the exclusive
collective-bargaining representative of all the em-
ployees in the above-described unit. Commencing on
or about January 7, 1977, and continuing at all times
thereafter to date, Respondent has refused, and
continues to refuse, to recognize and bargain with the
Union as the exclusive representative for collective
bargaining of all employees in said unit.9
Accordingly, we find that Respondent has, since
January 7, 1977, 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, Respon-
dent has engaged 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 its opera-
tions described in section I, above, have a close,
intimate, and substantial relationship to trade,
traffic, and commerce among the several States and
tend to lead to labor disputes burdening and
obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (I) of the Act, we
shall order that it cease and desist therefrom, and,
upon request, bargain collectively with the Union as
the exclusive representative of all employees in the
appropriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In order to insure that the employees in the
appropriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the initial period of certifica-
tion as beginning on the date Respondent commenc-
es to bargain in good faith with the Union as the
recognized bargaining representative in the appropri-
ate 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
(C.A. 5, 1964), cert. denied 379 U.S. 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421
(1964), enfd. 350 F.2d 57 (C.A. 10, 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Yeshiva University is an employer engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Yeshiva University Faculty Association is a
labor organization within the meaning of Section 2(5)
of the Act.
3. All full-time faculty members appointed to the
University in the titles of professor, associate
professor, assistant professor, instructor, or any
adjunct or visiting thereof, department chairmen,
division chairmen, senior faculty and assistant deans
who are employed by the Employer at its Campus,
exclusive of faculty at Albert Einstein College of
Medicine, Sue Golding Graduate School of Medical
Sciences, Yeshiva High School, Rabbi Isaac Elchan-
an Theological Seminary, Cantorial Training Insti-
tute, Community Service Division, and Sephardic
Community Activities Program; part-time faculty;
lecturers; principal investigators; deans, acting deans
and directors; faculty whose intital and subsequent
appointment is subject to special funding derived in
the main from non-University funds or whose initial
or subsequent appointment is in connection with
special projects; the Registrar; visiting professors
(with effective faculty appointments at other aca-
demic institutions); librarians; research assistants;
research associates; emeritus faculty not actively
engaged in teaching at the University; officers of the
University; all other administrative and support
personnel; guards, and all supervisors as defined in
Section 2(11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since December 29, 1976, the above-named
labor organization has been and now is the certified
and exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of
the Act.
5. By refusing on or about January 7, 1977, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all the employees of
Respondent in the appropriate unit, Respondent has
engaged 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, Respon-
dent has interfered with, restrained, and coerced, and
is interfering with, restraining, and coercing, employ-
ees in the exercise of the rights guaranteed to them in
Section 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 unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing 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
Relations Board hereby orders that Respondent,
Yeshiva University, New York, New York, 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
conditions of employment with Yeshiva University
Faculty Association as the exclusive bargaining
representative of its employees in the following
appropriate unit:
All full-time faculty members appointed to the
University in the titles of professor, associate
professor, assistant professor, instructor, or any
adjunct or visiting thereof, department chairmen,
division chairmen, senior faculty and assistant
deans who are employed by the Employer at its
Campus, exclusive of faculty at Albert Einstein
College of Medicine, Sue Golding Graduate
School of Medical Sciences, Yeshiva High School,
Rabbi Isaac Elchanan Theological Seminary,
Cantorial Training Institute, Community Service
Division, and Sephardic Community Activities
Program; part-time faculty; lecturers; principal
investigators; deans, acting deans and directors;
faculty whose initial and subsequent appointment
is subject to special funding derived in the main
from non-University funds or whose initial or
subsequent appointment is in connection with
special projects; the Registrar; visiting professors
(with effective faculty appointments at other
academic institutions); librarians; research assis-
tants; research associates; emeritus faculty not
actively engaged in teaching at the University;
officers of the University; all other administrative
and support personnel; guards, and all supervi-
sors as defined in Section 2(1 1) of 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 under-
600
YESHIVA UNIVERSITY
standing is reached, embody such understanding in a
signed agreement.
(b) Post at its offices and educational facilities in
New York, New York, copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
2, after being duly signed by Respondent's represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
'" 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 by 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."
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 Yeshi-
va University Faculty 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
described 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 agree-
ment. The bargaining unit is:
All full-time faculty members appointed to
the University in the titles of professor,
associate professor, assistant professor, in-
structor, or, any adjunct or visiting thereof,
department chairmen, division chairmen,
senior faculty and assistant deans who are
employed by the Employer at its Campus,
exclusive of faculty at Albert Einstein
College of Medicine, Sue Golding Graduate
School of Medical Sciences, Yeshiva High
School, Rabbi Isaac Elchanan Theological
Seminary, Cantorial Training Institute,
Community Service Division, and Sephardic
Community Activities Program; part-time
faculty; lecturers; principal investigators;
deans, acting deans and directors; faculty
whose initial and subsequent appointment is
subject to special funding derived in the
main from non-University funds or whose
initial or subsequent appointment is in
connection with special projects; the Regis-
trar; visiting professors (with effective facul-
ty appointments at other academic institu-
tions); librarians; research assistants; re-
search associates; emeritus faculty not ac-
tively engaged in teaching at the University;
officers of the University; all other adminis-
trative and support personnel; guards, and
all supervisors as defined in Section 2(11) of
the Act.
YESHIVA UNIVERSITY
601