University of Southern California

National Labor Relations Board - Board Decisions

Jan 28, 1982

259 N.L.R.B. 1253 (N.L.R.B. 1982)

UNIVERSITY OF SOUTHERN CALIFORNIA 1253
University of Southern California and California mary Judgment should not be granted. Respondent
Teamsters Public, Professional & Medical Em- thereafter filed a response to the Notice To Show
ployees Union Local 911, International Brother- Cause
hood of Teamsters, Chauffeurs, Warehousemen, Pursuant to the provisions of Section 3(b) of the
and Helpers of America. Case 31-CA-11272 National Labor Relations Act, as amended, the Na-
January 28, 1982 tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
DECISION AND ORDER Upon the entire record in this proceeding, the
Board makes the following:BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN Ruling on the Motion for Summary Judgment
Upon a charge filed on June 26, 1981, by Cali- In its opposition to the Motion for Summary
fornia Teamsters Public, Professional & Medical Judgment, as in its answer to the complaint, Re-
Employees Union Local 911, International Brother- spondent contends that it is not obligated to bar-
hood of Teamsters, Chauffeurs, Warehousemen, gain with the Union because the certification issued
and Helpers of America, herein called the Union, to the Union in Case 31-RC-4721 is invalid by
and duly served on University of Southern Califor- reason that the Board erroneously denied Respond-
nia, herein called Respondent, the General Counsel ent's request to set aside the election and order a
of the National Labor Relations Board, by the Re- new election. The General Counsel submits that
gional Director for Region 31, issued a complaint Respondent's contention should be discounted as
on July 24, 1981, against Respondent, alleging that an attempt to relitigate issues which were or could
Respondent had engaged in and was engaging in have been disposed of by the Board in the prior
unfair labor practices affecting commerce within representation proceeding. We agree.
the meaning of Section 8(a)(5) and (1) and Section A review of the entire record, including that in
2(6) and (7) of the National Labor Relations Act, Case 31-RC-4721, reveals that on April 16, 1980,
as amended. Copies of the charge and the com- the Regional Director for Region 31 approved a
plaint and notice of hearing before an administra- Stipulation for Certification Upon Consent Election
tive law judge were duly served on the parties to executed by the Union and Respondent. Pursuant
this proceeding. to this, a secret-ballot election was held on June 6,
With respect to the unfair labor practices, the 1980, which resulted in a tally of 20 votes for, and
complaint alleges in substance that on May 22, 19 against, the Union, with 1 determinative chal-
1981, following a Board election in Case 31-RC- lenged ballot. Following the election, the parties
4721, the Union was duly certified as the exclusive signed an agreement stipulating that the employee
collective-bargaining representative of Respond- who had cast the challenged ballot was ineligible
ent's employees in the unit found appropriate;' and to vote. In view of this agreement, the parties re-
that, commencing on or about June 10, 1981, and ceived a corrected tally of ballots.
at all times thereafter, Respondent has refused, and On June 13, 1980, Respondent, by letter, filed
continues to date to refuse, to bargain collectively with the Regional Director six timely objections to
with the Union as the exclusive bargaining repre- conduct affecting the results of the election. The
sentative, although the Union has requested and is Regional Director issued his Report on Objections
requesting it to do so. On August 3, 1981, Re- on July 31, 1980, recommending that all six objec-
spondent filed its answer to the complaint admit- tions be overruled without a hearing. Thereafter,
ting in part, and denying in part, the allegations in Respondent filed timely exceptions to the Regional
the complaint. Director's recommendations regarding its Objec-
On September 14, 1981, counsel for the General tions I through 5.
Counsel filed directly with the Board a Motion for On October 21, 1980, the Board issued its Deci-
Summary Judgment. Subsequently, on September sion and Direction, which adopted the Regional
24, 1981, the Board issued an order transferring the Director's findings and recommendations, except
proceeding to the Board and a Notice To Show that it remanded for hearing the issues raised by
Cause why the General Counsel's Motion for Sum- Respondent's Objection 5. On November 6, 1980,
Respondent filed an untimely motion for reconsid-' Official notice is taken of the record in the representation proceeding. Rt fd a u m fr r
Case 31-RC-4721, as the term "record" is defined in Sees. 102.68 and eration of the Board's Decision. On November 7,
102.69(g) of the Board's Rules and Regulations, Series 8, as amended. See 1980, the Board denied Respondent's motion as un-
LTV Electrosystems. Inc., 166 NLRB 938 (1967). enfd. 388 F.2d 683 (4th timely 2
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Interrype Co. v. Penello, 269 F.Supp. 573
(D.C.Va. 1967); Follerr Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91 2 In our Decision and Direction, issued on October 21, 1980. we stated:
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended. Continued
259 NLRB No. 163
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1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 14, 1980, the Regional Director properly issued a certification of representative to
issued a notice of hearing on objection. Thereafter, the Union.
a hearing regarding Respondent's Objection 5 was It is well settled that in the absence of newly dis-
held on December 10 and 11, 1980. On February covered or previously unavailable evidence or spe-
26, 1981, the Hearing Officer issued a report, rec- cial circumstances a respondent in a proceeding al-
ommending that Respondent's objection be over- leging a violation of Section 8(a)(5) is not entitled
ruled and that a certification of representative be to relitigate issues which were or could have been
issued. The Hearing Officer's findings and recom- litigated in a prior representation proceeding. 3
mendations were adopted by the Board on May 22, All issues raised by Respondent in this proceed-
1981, when it issued its Decision and Certification ing were or could have been litigated in the prior
of Representative, certifying the Union as the ex- ereentation proeeding a
clusive collective-bargaining representative of the rereetto ceedi and Respond does
employees in the appropriate unit. not offer to adduce at a hearing any newly discov-
Thereafter, the Union, by letter dated May 26, ered or previously unavailable evidence, nor does
1981, requested that Respondent meet and confer it allege that any special circumstances exist herein
with it for the purposes of collective bargaining. which would require the Board to reexamine the
Respondent, by letter dated June 10, 1981, ac- decision made in the representation proceeding. We
knowledged receipt of the Union's letter and stated therefore find that Respondent has not raised any
it refused to recognize and bargain collectively issue which is properly litigable in this unfair labor
with the Union because it considered the Union's practice proceeding. Accordingly, we grant the
certification to be invalid. Motion for Summary Judgment.
In its answer, and in its response to the Notice On the basis of the entire record, the Board
To Show Cause, Respondent alleges four affirma- makes the following:
tive defenses. As a first affirmative defense, it al-
leges that the Regional Director, in his Report on FINDINGS OF FACT
Objections, improperly recommended that each of
said objections be overruled and that a certification
of representative be issued. As a second affirmative Respondent is a California corporation, maintain-
defense, Respondent alleges that the Board errone- ing its principal place of business in Los Angeles,
ously sustained the Regional Director's recommen- California, where it is now and continuously has
dations as to Objections 2, 3, and 4 and that it erro- been engaged in the operation of a nonprofit uni-
neously failed to respond to Respondent's excep- versity. Its annual gross revenues exceed $1 mil-
tion to the Regional Director's recommendation lion. Annually, it purchases and receives goods or
that Objection I be overruled. As a third affirma- services valued in excess of $50,000 from sellers or
tive defense, Respondent alleges that the Hearing suppliers located within the State of California,
Officer, in her Report on Objections and Recom- which sellers or suppliers receive such goods in
mendations, improperly recommended that Re- substantially the same form directly from outside
spondent's Objection 5 be overruled and that a cer- the State of California.
tification of representative be issued to the Union. We find, on the basis of the foregoing that Re-
As a fourth affirmative defense, Respondent alleges. , n h s
that the Board erroneously adopted the spon ent is, and has been at all times materialthat the Board erroneously adopted the Hearing
Officer's findings and recommendations and im herein, an employer engaged in commerce wth
the meaning of Section 2(6) and (7) of the Act, and
The Board has reviewed the record in light of the exceptions and brief, that it will effectuate the policies of the Act to
and hereby adopts the Regional Director's findings and recommenda- assert jurisdiction herein.
tions, except that it finds that substantial issues of fact and law have been
raised regarding the conduct described in Objection 5, which can best he. THE LABOR ORGANIZATION INVOLVED
resolved after a hearing.
Thus, we made it clear that Respondent's Objections I through 4 and 6 California Teamsters Public, Professional and
had been overruled. However, since we wanted to clarify our holding as
to Objections 2, 3, and 4, we added a footnote that specifically addressed Medical Employees Union Local 911, International
each of these. Brotherhood of Teamsters, Chauffeurs, Warehouse-
Respondent's motion for reconsideration alleged that the Board failed men, and Helpers of America, is a labor organiza-
to address its exception to the Regional Director's recommendation as to
Objection 1. We denied this motion as untimely. However, even if it had tion within the meaning of Section 2(5) of the Act.
been timely filed we would have denied it. Merely because we did not
specifically address Objection I in a footnote does not mean that we
failed to rule on it. In our Decision and Direction we considered Objec-
tion I and the Regional Director's disposition of it. and, after reviewing
the record in light of the exceptions and brief, adopted his recommenda- See Pittsburgh Plate Glass Co v. NL.R.., 313 U.S. 146, 162 (1941);
tion that it be overruled , Rules and Regulations of the Board, Secs. 102.67(0 and 102.69(c).

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el i r i i nt ti n r t at a in n iso-
l y s in the appropriate unit. ered o r p o u na va evdece nor d os
r ft r, the i , by letter dated ay 26, ier ed o r Previously unavailable evidence, nor does
, t a l l e e th at eal ir st s e ist erei
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BUSINESS OF RESPONDENT
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ri i jecti 5, hich can best heORGANIZATION INVOLVED
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UNIVERSITY OF SOUTHERN CALIFORNIA 1255
III. THE UNFAIR LABOR PRACTICES ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
A. The Representation Proceeding fic, and commerce among the several States and
1. The unit tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of com-
The following employees of Respondent consti- merce
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the V. THE REMEDY
Act: ~~~~~~~~Act: ~~Having found that Respondent has engaged in
All parking lot attendants and utility atten- and is engaging in unfair labor practices within the
dants employed by Respondent at its Universi- meaning of Section 8(a)(5) and (1) of the Act, we
ty Park and Health Sciences campuses; exclud- shall order that it cease and desist therefrom, and,
ing office clerical employees, janitors, guards, upon request, bargain collectively with the Union
professional employees, all other employees as the exclusive representative of all employees in
and supervisors as defined in the Act, as the appropriate unit and, if an understanding is
amended. reached, embody such understanding in a signed
2. The certification agreement.
In order to insure that the employees in the ap-
On June 6, 1980, a majority of the employees of propriate unit will be accorded the services of their
Respondent in said unit, in a secret-ballot election selected bargaining agent for the period provided
conducted under the supervision of the Regional by law, we shall construe the initial period of certi-
Director for Region 31, designated the Union as fication as beginning on the date Respondent com-
their representative for the purpose of collective mences to bargain in good faith with the Union as
bargaining with Respondent. the recognized bargaining representative in the ap-
The Union was certified as the collective-bar- propriate unit. See Mar-Jac Poultry Company Inc.
gaining representative of the employees in said unit 136 NLRB 785 (1962); Commerce Company d/b/o
on May 22, 1981, and the Union continues to be Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328
such exclusive representative within the meaning of F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817;
Section 9(a) of the Act. Burnett Construction Company, 149 NLRB 1419,
B. The Request To Bargain and Respondent's 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
Refusal The Board, upon the basis of the foregoing facts
and the entire record, makes the following:Commencing on or about May 26, 1981, and at
all times thereafter, the Union has requested Re- CONCLUSIONS OF LAW
spondent to bargain collectively with it as the ex-
clusive collective-bargaining representative of all 1. University of Southern California is an em-
the employees in the above-described unit. Con- ployer engaged in commerce within the meaning of
mencing on or about June 10, 1981, and continuing Section 2(6) and (7) of the Act.
at all times thereafter to date, Respondent has re- 2. California Teamsters Public, Professional &
fused, and continues to refuse, to recognize and Medical Employees Union Local 911, International
bargain with the Union as the exclusive representa- Brotherhood of Teamsters, Chauffeurs, Warehouse-
tive for collective bargaining of all employees in men, and Helpers of America, is a labor organiza-
said unit. tion within the meaning of Section 2(5) of the Act.
Accordingly, we find that Respondent has, since 3. All parking lot attendants and utility atten-
June 10, 1981, and at all times thereafter, refused to dants employed by Respondent at its University
bargain collectively with the Union as the exclu- Park and Health Sciences campuses; excluding
sive representative of the employees in the appro- office clerical employees, janitors, guards, profes-
priate unit, and that, by such refusal, Respondent sional employees, all other employees and supervi-
has engaged in and is engaging in unfair labor prac- sors as defined in the Act, as amended, constitute a
tices within the meaning of Section 8(a)(5) and (1) unit appropriate for the purposes of collective bar-
of the Act. gaining within the meaning of Section 9(b) of the
Act.
Iv. THE EFFECT OF THE UNFAIR LABOR 4. Since May 2, 1981, the above-named labor or-
PRACTICES UPON COMMERCEPRACTICES UPON OMMERCEganization has been and now is the certified and ex-
The activities of Respondent set forth in section clusive representative of all employees in the afore-
III, above, occurring in connection with its oper- said appropriate unit for the purpose of collective
n1.
A . The Repr sentation Proceedingintimate,
. sentation eeding i , t l t t
t e n t o t o
, ,, . , . ~~~~~structing rn-
s t consti- smercea
.
Having found that espondent has engaged in
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l i r r nt ti it i t i f . ( t i . ), rt. i . . ;
ti t ^Burnett tr ction , ,
,
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PRACTICES ganization rti
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1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining within the meaning of Section 9(a) of other terms and conditions of employment and, if
the Act. an understanding is reached, embody such under-
5. By refusing on or about June 10, 1981, and at standing in a signed agreement.
all times thereafter, to bargain collectively with the (b) Post at its University Park and Health Sci-
above-named labor organization as the exclusive ences campuses copies of the attached notice
bargaining representative of all the employees of marked "Appendix." 4 Copies of said notice, on
Respondent in the appropriate unit, Respondent forms provided by the Regional Director for
has engaged in and is engaging in unfair labor prac- Region 31, after being duly signed by Respondent's
tices within the meaning of Section 8(a)(5) of the representative, shall be posted by Respondent im-
Act. mediately upon receipt thereof, and be maintained
6. By the aforesaid refusal to bargain, Respond- by it for 60 consecutive days thereafter, in con-
ent has interfered with, restrained, and coerced, spicuous places, including all places where notices
and is interfering with, restraining, and coercing, to employees are customarily posted. Reasonable
employees in the exercise of the rights guaranteed steps shall be taken by Repondent to insure that
them in Section 7 of the Act, and thereby has en- said notices are not altered, defaced, or covered by
gaged in and is engaging in unfair labor practices any other material.
within the meaning of Section 8(a)(1) of the Act. (c) Notify the Regional Director for Region 31,
7. The aforesaid unfair labor practices are unfair in writing, within 20 days from the date of this
labor practices affecting commerce within the Order, what steps have been taken to comply here-
meaning of Section 2(6) and (7) of the Act. with.
ORDER-ORDER ^ In the event that this Order is enforced by a Judgment of a United
Pursuant to Section 10(c) of the National Labor states Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
Relations Act, as amended, the National Labor Re- ant to a Judgment of the United States Court of Appeals Enforcing an
lations Board hereby orders that the Respondent, Order of the National Labor Relations Board."
University of Southern California, Los Angeles,
California, its officers, agents, successors, and as- APPENDIX
signs, shall:
NOTICE TO EMPLOYEES1. Cease and desist from: IC o EPLOYEES
(a) Refusing to bargain collectively concerning POSTED BY ORDER OF THE
rates of pay, wages, hours, and other terms and NATIONAL LABOR RELATIONS BOARD
conditions of employment with California Team- An Agency of the United States Government
sters Public, Professional and Medical Employees
Union Local 911, International Brotherhood of WE WILL NOT refuse to bargain collectively
Teamsters, Chauffeurs, Warehousemen, and Help- concerning rates of pay, wages, hours, and
ers of America, as the exclusive bargaining repre- other terms and conditions of employment
sentative of its employees in the following appro- with California Teamsters Public, Professional
priate unit: & Medical Employees Union Local 911, Inter-
All parking lot attendants and utility atten- national Brotherhood of Teamsters, Chauf-
dants employed by Respondent at its Universi- feurs, Warehousemen, and Helpers of Amer-
ty Park and Health Sciences campuses; exclud- ica, as the exclusive representative of the em-
ing office clerical employees, janitors, guards, ployees in the bargaining unit described below.
professional employees, all other employees WE WILL NOT in any like or related manner
and supervisors as defined in the Act, as interfere with, restrain, or coerce our employ-
amended. ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
(b) In any like or related manner interfering , i
with, restraining, or coercing employees in the ex- W E W ILL , upon r e qu es t , b a rgain w ith th e
ercise of the rights guaranteed them in Section 7 of above-named Union, as the exclusive repre-
the Act. sentative of all employees in the bargaining
2. Take the following affirmative action which unit described below, with respect to rates of
the Board finds will effectuate the policies of the pay, wages, hours, and other terms and condi-
Act: tions of employment and, if an understanding
(a) Upon request, bargain with the above-named is reached, embody such understanding in a
labor organization as the exclusive representative signed agreement. The bargaining unit is:
of all employees in the aforesaid appropriate unit All parking lot attendants and utility atten-
with respect to rates of pay, wages, hours, and dants employed by us at our University Park
4

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ROFR----O-»lRDER I t t t t t i i f r t it
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UNIVERSITY OF SOUTHERN CALIFORNIA 1257
and Health Sciences campuses; excluding and supervisors as defined in the Act, as
office clerical employees, janitors, guards, amended.
professional employees, all other employees
UNIVERSITY OF SOUTHERN CALIFOR-
NIA
r f i l l , ll t l