NOTICE:  This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions.  Readers are requested to notify the Executive 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.

Pace University and New York State United Teachers/ American Federation of Teachers, AFL–CIO. Case 2–CA–37884

January 22, 2007

DECISION AND ORDER

By Members Schaumber, Kirsanow,
 and Walsh

This is a refusal-to-bargain case in which the Respondent is contesting the Union’s certification as bargaining representative in the underlying representation proceedings.  Pursuant to a charge filed on September 14, 2006,[1] the General Counsel issued the complaint on September 28, 2006, alleging that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing the Union’s request to bargain with respect to certain disputed adjunct faculty members employed at the Respondent’s University following the Union’s certification in Case 2–RC–22795 and the clarification of the unit description in Case 2–UC–589.  (Official notice is taken of the “record” in the representation proceedings as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).)  The Respondent filed an answer admitting in part and denying in part the allegations in the complaint and asserting an affirmative defense.

On October 30, 2006, the General Counsel filed a Motion for Summary Judgment and memorandum in support.  On November 1, 2006, 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 delegated its authority in this proceeding to a three-member panel.

Ruling on Motion for Summary Judgment

The Respondent admits its refusal to bargain, but contends that the Board erred in Case 2–UC–589 in including in the unit adjunct faculty members and part-time instructors who were excluded from voting in the election.  Specifically, the Respondent argues that the disputed employees who do not satisfy the voter eligibility criteria are casual employees, who are expressly excluded from the certified unit.

All representation issues raised by the Respondent were or could have been litigated in the prior representation proceedings.  The Respondent does not offer to adduce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decisions made in the representation proceedings.  We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding.  See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941).  Accordingly, we grant the Motion for Summary Judgment.

On the entire record, the Board makes the following

Findings of Fact

i.  jurisdiction

At all material times, the Respondent, a New York corporation with an office and place of business located at One Pace Plaza, New York, New York, has been engaged in the operation of a private nonprofit institution of higher education.  Annually, in the course and conduct of its business operations described above, the Respondent derives revenues in excess of $1 million, and purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of New York.

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 New York State United Teachers/American Federation of Teachers, AFL–CIO (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 mixed manual and mail ballot election held between April 26 and May 10, 2004, the Union was certified on May 26, 2004, as the exclusive collective-bargaining representative of the employees in the following appropriate unit:

 

INCLUDED:  All adjunct faculty members, part-time instructors, and all adjunct faculty members and part-time instructors who work in a non-supervisory dual capacity for the Employer, employed by the Employer.

 

EXCLUDED:  All other employees, including adjunct faculty and part-time instructors employed in the School of Law, all full-time faculty, casual employees, independent contractors, guards and supervisors within the meaning of the Act.

 

In conducting this election, the Regional Director set forth the following voter eligibility criteria:

 

Eligible to vote in the election are those in this unit who have received appointments and teach or have taught at least 3 credit hours and/or 45 hours in any semester in any of two academic years during the three year period commencing with the 2001–2002 academic year and ending with the 2003–2004 academic year.

 

On or around October 22, 2004, a dispute arose between the Respondent and the Union with respect to the inclusion of certain part-time adjunct faculty members in the unit.  Specifically, during bargaining for an initial contract, the Respondent insisted that the certified unit included only those adjunct faculty who satisfied the voting eligibility criteria described above.  Thus, the Respondent’s position was that adjunct faculty do not become unit members until they have taught at least 3 credit hours and/or 45 hours in a semester in 2 of the preceding 3 academic years, including the current academic year.

On February 10, 2006, the Union filed a unit clarification petition in Case 2–UC–589, which sought to have the Board resolve the parties’ dispute regarding the meaning of the voter eligibility formula used for the election among adjunct faculty members in the underlying representation case, 2–RC–22795.

On July 5, 2006, in Case 2–UC–589, the Regional Director issued a Decision and Order Clarifying Unit Description.  The Regional Director found that membership in the certified unit was not limited to only those adjunct faculty members who satisfied the voting eligibility formula.  Accordingly, the Regional Director issued an Order stating that all adjunct faculty members and part-time instructors who teach at least 3 credit hours and/or 45 hours in one semester are members of the unit.  On August 23, 2006, the Board issued an unpublished Order denying the Respondent’s request for review of the Regional Director’s Order Clarifying Unit Description.[2]

The Union continues to be the exclusive representative of the certified unit, as clarified by the Regional Director, under Section 9(a) of the Act.

B.  Refusal to Bargain

On or about August 23 and September 11, 2006, the Union, by telephone and in person, requested the Respondent to bargain with the Union as the exclusive collective-bargaining representative of the unit for all members of the unit.  Since on or about September 12, 2006, the Respondent has refused to do so.  We find that this refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act.

Conclusion of Law

By refusing since September 12, 2006, to bargain with the Union as the exclusive collective-bargaining representative of all 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 certification as beginning on the date the Respondent begins to bargain in good faith with the Union with respect to all the members in the certified unit.  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); and 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, Pace University, New York, New York, its officers, agents, successors, and assigns, shall

1.  Cease and desist from

(a)  Refusing to bargain with New York State United Teachers/American Federation of Teachers, AFL–CIO, 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 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 exclusive representative of the employees in the following appropriate unit on terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement:

 

INCLUDED:  All adjunct faculty members, part-time instructors, and all adjunct faculty members and part-time instructors who work in a non-supervisory dual capacity for the Employer, employed by the Employer.

 

EXCLUDED:  All other employees, including adjunct faculty and part-time instructors employed in the School of Law, all full-time faculty, casual employees, independent contractors, guards and supervisors within the meaning of the Act.

 

(b)  Within 14 days after service by the Region, post at its facility in New York, New York, copies of the attached notice marked “Appendix.”[3]  Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent 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.  In the event that, during the pendency of these proceedings, 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 current employees and former employees employed by the Respondent at any time since September 12, 2006.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification 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.  January 22, 2007

 

 

 


Peter C. Schaumber,                       Member

 

 


Peter N. Kirsanow,                         Member

 

 


Dennis P. Walsh,                        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 benefit and protection

Choose not to engage in any of these protected activities.

 

We will not refuse to bargain with New York State United Teachers/American Federation of Teachers, AFL–CIO, as the exclusive bargaining representative of the 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 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 following bargaining unit:

 

INCLUDED:  All adjunct faculty members, part-time instructors, and all adjunct faculty members and part-time instructors who work in a non-supervisory dual capacity for the Employer, employed by the Employer.

 

EXCLUDED:  All other employees, including adjunct faculty and part-time instructors employed in the School of Law, all full-time faculty, casual employees, independent contractors, guards and supervisors within the meaning of the Act.

Pace University


[1] The Respondent’s answer denies knowledge or information sufficient to form a belief as to the exact date on which the Union filed the charge.  The Respondent, however, admits receiving a copy of the charge dated September 14, 2006.  Further, a copy of the charge is included in the documents supporting the General Counsel’s motion, showing the filing date as alleged, and the Respondent does not contest the authenticity of this document.

[2] The Respondent denies knowledge or information sufficient to form a belief as to the exact dates on which the Union filed its unit clarification petition and on which the Board issued its Order denying the Respondent’s request for review.  However, copies of these documents and the certificate of service are included in the documents supporting the General Counsel’s motion, showing the dates as alleged, and the Respondent does not contest the authenticity of these documents.

 

[3] The Respondent denies knowledge or information sufficient to form a belief as to the exact dates on which the Union filed its unit clarification petition and on which the Board issued its Order denying the Respondent’s request for review.  However, copies of these documents and the certificate of service are included in the documents supporting the General Counsel’s motion, showing the dates as alleged, and the Respondent does not contest the authenticity of these documents.