Baldwin League Of Independent Schools

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 981 (N.L.R.B. 1986)

BALDWIN LEAGUE OF SCHOOLS 981
Baldwin League of Independent Schools and United
Federation Of Teachers, Local No. 2, New
York State United Teachers, American Federa-
tion of Teachers, AFL-CIO. Cases 2-CA--
18638 and 2-CA-18886
The National Labor Relations Board has delegat-
ed its authority, in this proceeding to a three-
member panel.
Ruling on Motions for Summary Judgment
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
Upon charges filed by the Union 5 March 1982
in Case 2-CA-18638 and 23 June 1982 in Case 2-
CA-18886, the General Counsel of the National
Labor Relations Board issued complaints on 12
April and 14 July 1982, respectively, against the
Company, the Respondent, alleging that it has vio-
lated Section 8(a)(5) and (1) of the National Labor
Relations Act.
The complaints allege that on '17 June 1981 and
7 April ' 1982, following a Board election in Cases
2-RC-18926 and 2-RC-18975, respectively, the
Union was certified as the exclusive collective-bar-
gaining representative of the Company's employees
in the unit found appropriate. (Official notice is
taken of the "record" in the representation pro-
ceeding as defined in the Board's Rules and Regu-
lations, Secs. 102.68 and 102.69(g), amended Sept.
9, 1981, 46 Fed.Reg. 45922 (1981); Frontier doted,
265 NLRB 343 (1982).)' The complaints further
allege that since I1 February and 14 May '1982, re-
spectively, the Company has refused to bargain
with the Union. On 29 April and 30 July 1982, the
Company filed its answer admitting in part and de-
nying in part the allegations in' the complaints.
On 19 August and 20 September 1982 the Gener-
al Counsel filed Motions for Summary Judgment in
both cases . On 26 August 1982 the Board issued an
order transferring the proceeding in Case 2-CA-
18638 to the Board and a Notice to Show Cause
why the General Counsel's. Motion for Summary
Judgment should not be granted. On 2 September
1982 the Company requested that Cases 2-CA-
18638 and 2-CA-18886 be consolidated. On 4 Oc-
tober 1982 the Board issued an order transferring
the proceeding in Case 2-CA-18886 to the Board
and a Notice to Show Cause, why the motion
should not be granted. The Board also granted the
Company's request for consolidation of these cases
because the issues presented were similar and the
same company and 'union were involved. The
Company filed a response to the Notices to Show
Cause.
I No current members were members of the Board at the time of
either of the underlying representation proceedings.
As noted earlier, the Board by order dated 4 Oc-
tober 1982, consolidated Cases' 2-CA-18638 and 2-
CA-18886. Since, for the reasons set forth below,
we grant the General Counsel's Motion for Sum-
mary Judgment only in Case 2-CA-18886, the rul-
ings on each motion will be; addressed separately.
Case 2-CA-18638
The Company in its answer to the complaint
admits the request and its refusal to bargain with
the Union, but denies that its conduct violated Sec-
tion 8(a)(5) and (1) of the Act. The Company also
alleges in its answer and in its response to the
Notice to Show Cause certain affirmative defenses:
(1) that the Union represents interests which are in
competition and conflict with those of the Compa-
ny's employees; (2) that the Union is not a, labor
organization within the meaning of the Act; (3)
that all objections and positions previously asserted
in the underlying representation proceeding in Case
2-RC-18926 are realleged and reasserted; (4) that
the election has been rendered invalid because of
the closure of the Company's Riverside School
which changed the nature and character of the bar-
gaining unit; (5) that the unfair labor practices al-
leged in the complaint are barred by Section 10(b)
of the Act; and (6) that no valid, timely request to
bargain was made by the Union.
In the Motion for Summary Judgment, the Gen-
eral Counsel maintains that the Company raises no
'issues requiring a hearing; that as to the Company's
affirmative defenses, the first and third raise no
issue not determined in Case 2-RC-18926; and that
the second and fourth could have been. raised in
the prior representation proceeding. Regarding the
fifth and sixth affirmative defenses, which do not
raise issues properly litigated in a representation
proceeding, the General Counsel further asserts
that the complaint is not barred by Section 10(b)
and that the Union made a valid and timely request
to bargain. Except with respect to one aspect of
the Company's third affirmative defense, we agree
with the General Counsel.
As part of its affirmative defense, the Company
contends that in the underlying representation ease
the Regional Director certified the Union in an in-
appropriate unit, contrary to the mandatory, provi-
sions of Section 9(b)(1) of the Act. Specifically, the
Company contends that the Regional Director in-
cluded in the unit of professional employees the li-
brarians, whom the Company contended were non-
281 NLRB No. 134
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees, without conducting a Sono-
tonea election. We find merit in this contention.3
In the Acting Regional Director 's Decision and
Direction of Election in Case 2-RC-18926, he
found the following employees of the Company
constitute a unit appropriate for the purposes of
collective bargaining:
All full-time and regular part-time teachers in-
cluding full-time classroom teachers, part-time
learning disabilities specialists and reading spe-
cialists, and librarians, employed by the Em-
ployer at Baldwin, Emerson, and Riverside
Schools, excluding part-time subject matter
teachers, reading tutors, nursery school/-
kindergarten aides, office clerical employees,
custodians, kitchen help , principals, reading su-
pervisors, executive directors, guards, and su-
pervisors, as defined in the Act.
The Company and the Union stipulated to the
professional status of the teachers and specialists,
but as to the librarians, the Company maintained
that they were not professionals. Thus, it contend-
ed the teachers and specialists could not be includ-
ed in a unit with librarians , absent their vote in
favor of such inclusion.
The Acting Regional Director made no finding
as to whether the librarians were professional em-
ployees. Rather, in deciding to include the librar-
ians in the unit, he noted merely that "although
they [the librarians] may not be professional em-
ployees, the Employer treats them as part of the
teaching faculty [and, therefore,] they will be in-
cluded in the unit." The clear implication of this
statement is that the unit found appropriate by the
Acting Regional Director may well include both
professional and nonprofessional employees.
Section 9(b) of the Act states that "the Board
shall not (1) decide that any unit is appropriate .. .
if such unit includes both professional employees
and employees who are not professional employees
unless a majority of such professional employees
vote for inclusion in such unit." Thus, if the librar-
ians are in fact nonprofessional employees, the
Acting Regional Director's unit determination con-
travenes Section 9(b).
Because the Acting Regional Director failed to
determine the status of the librarians and to ascer-
tain, in a Sonotone election, the desires of the teach-
ers and specialists as to inclusion in a unit with the
librarians should the librarians be found to be non-
2 Sonotone Corp., 90 NLRB 1236 ( 1950).
8 The "prohibition" against relitigation of representation case issues in
8(ax5) proceedings alleging a refusal to honor a record certification, ap-
plies to the rights of the parties to the representation proceeding. The
policy does not affect the Board 's authority to reconsider its own action
in a representation proceeding.
professionals, we shall order that Case 2-CA-18638
be severed from Case 2-CA-18886 and that it be
remanded to the Regional Director for Region 2
for further appropriate action.
Accordingly, we deny the Motion for Summary
Judgment in Case 2-CA-18638.
Case 2-CA-18886
The Company in its answer to the complaint
admits the request to bargain and its refusal, but
denies that its conduct violated Section 8(a)(5) and
(1) of the Act. The Company also alleges in its
answer and its response to the Notice to Show
Cause the same affirmative defenses as raised in
Case 2-CA-18638. Thus, the Company again
argues that the Union has a conflict of interest; that
the Union is not a labor organization within the
meaning of the Act; that all objections and posi-
tions previously asserted in the underlying repre-
sentation proceeding in Case 2-RC-18975 are real-
leged and reasserted; that the election has been ren-
dered invalid because of the closure of the Compa-
ny's Riverside School which changed the nature
and character of the bargaining unit; that the unfair
labor practices alleged here are barred by Section
10(b) of the Act; and that the Union failed to make
a valid and timely request for bargaining upon the
Respondent. In addition, the Company contends
that the Board lacks jurisdiction and, in any event,
should exercise its discretion not to proceed since
the General Counsel failed to conduct an investiga-
tion into the merits of the Company's conflict of
interest defense. We find no merit in any of these
defenses.
A review of the entire record, including the
record in Case 2-RC-18975, reveals that on 6 May
1981 the Acting Regional Director for Region 2
issued a Decision and Direction of Election in the
following unit:
All part-time subject matter teachers and read-
ing tutors employed by Baldwin League of In-
dependent Schools of New York, herein the
Employer, at Baldwin, Emerson and Riverside
Schools, excluding full-time classroom teach-
ers, part-time learning disabilities specialists
and reading specialists, and all non-professional
employees, guards and supervisors as defined
in the Act.
The Company filed a timely request for review
of the Acting Regional Director's Decision and Di-
rection of Election. On 2 June 1981 an election was
conducted, but the ballots were impounded pend-
ing resolution of the Employer's request for
review. On 26 June 1981 the Board granted in part
the Company's request for review and directed the
BALDWIN LEAGUE OF SCHOOLS 983
Regional Director to consider reopening the hear-
ing and to issue a supplemental decision regarding
the alleged independent contractor status of read-
ing tutors employed by the Company at the Bald-
win School.
On 28 July 1981 the Regional Director issued a
notice of hearing and order reopening hearing in
Case 2-RC-18975 directing a hearing on the chal-
lenged ballots and the alleged-independent contrac-
tor status of the reading tutors. On 1 December
1981 the Regional Director issued a Supplemental
Decision and Report on Challenged Ballots, in
which he concluded that the reading tutors were
employees rather than independent contractors and
recommended that the nine challenged ballots be
opened and counted. The Company filed a timely
request for review, which was denied by the Board
on 23 February 1982. On 5 March 1982 the ballots
of the 2 June 1981 election were opened and count-
ed revealing that a majority of the employees in
the unit had selected the Union as their collective-
bargaining representative.4 The Company filed
timely objections to the election and a motion to
reopen the record to receive evidence as to the
Union's alleged conflict of interest. On 7 April
1982 the Regional Director issued a Second Sup-
plemental Decision and Certification of Representa-
tive in which he' denied the Company's motion,
overruled its objections, and certified the Union as
the exclusive collective-bargaining representative in
the appropriate unit. The Company filed a timely
request for review, which was denied by the Board
on 30 June 1982.
By letter to the Company dated 21 April 1982,
the Union requested that the Company bargain
with it as the exclusive bargaining representative of
the unit employees. By letter dated 14 May 1982
the Company refused to bargain with the Union.
We reject the Company's affirmative defenses
concerning the objections to the election, the status
of the Union as a labor organization, and the Gen-
eral Counsel's failure to conduct an investigation
into the Union''s alleged conflict of interest, because
they raise no issues which have not been previous-
ly determined by the Board in Case 2-RC-18975.
It is well settled that in the absence of newly dis-
covered and 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 that were or could have been
litigated in a prior representation proceeding. See
Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941); Secs. 102.67(f) and 102.69(c) of the Board's
Rules and Regulations. We also reject the remain-
ing affirmative defenses raised by the Company.
- With respect to the Section 10(b) argument, the
Company admits that on 7 April 1982 the Regional
Director certified the Union in Case 2-RC-18975;
that it received a letter from the Union, dated 21
April 1982, requesting collective bargaining; that
on 14 May 1982, by letter, the Company refused to
commence bargaining; and that on, 23 June -1982,
the Union filed the instant charge. Since the Com-
pany is obligated to bargain with the Union for at
least 1 year from the date of the certification and
since.the Company has admitted that it refused on
14 May 1982 to bargain collectively with the
Union, it has violated Section 8(a)(1) and (5) of the
Act during the 6 months preceding the filing of the
charge on 23 June 1982.5
With respect to the Union's alleged failure to
make a valid and timely request to bargain, the
Company admitted that it -received a letter dated
21 April 1982 in which the Union requested collec-
tive bargaining. Thus, the Union's request, having
been made within the certification year, is a timely
and valid request to bargain.6
Additionally, we find no merit to the Company's
defense that the election has been rendered invalid
because of the subsequent closure of the Compa-
ny's Riverside School. The Union was the exclu-
sive bargaining representative of the employees at
the time Riverside closed, and the Company's bar-
gaining obligation was not dissolved by its decision
to close that school. The Company's reduced size
in operation does not constitute "unusual circum-
stances" within the Supreme Court's decision Ray
Brooks v. NLRB, 348 U.S. 96 (1954). See also At-
lantic International Corp., 246 NLRB 291, 295
(1979), enfd. 664 F.2d 1231 (4th Cir. 1981).
In sum, we find that the Respondent has not
raised any issue which is properly litigable in this
unfair labor practice proceeding and, accordingly,
we grant the Motion for Summary Judgment.
On the entire record, the Board makes the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
The Company, a New York not-for-profit corpo-
ration, with offices and places of business in, New
York, New York, operates a private, nonprofit edu-
cational institution. Annually, in the course and
conduct of its operations, the Company derives
gross revenues in excess of $1 million„ excluding
4 The tally of ballots indicated that eight votes were cast for, and one
against the Union with no challenged ballots. -
5 See Sunnyland Refining Co, 250 NLRB 1180, 1181 (1980), enfd 657
F 2d 1249 (5th Cir., 1981).
6 See Sunnyland, supra.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contributions which, because of limitation by the
grantor, are not available for operating expenses. In
addition, the Company annually purchases and re-
ceives at its New York, New York facilities prod-
ucts, goods, and materials valued in excess of
$25,000 from other enterprises located within the
State of New York, which other enterprises annu-
ally receive those products, goods, and materials
valued in excess of $25,000 directly from points
outside the State of New York. We find that the
Company is an employer engaged in commerce
within the meaning of Section 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 election held 2 June 1981 the
Union was certified 7 April 1982 as the collective-
bargaining representative of the employees in the
following appropriate unit:
All part-time subject matter teachers and read-
ing tutors employed by the Employer at Bald-
win, Emerson and Riverside Schools, exclud-
ing full-time classroom teachers, part-time
learning disabilities specialists and reading spe-
cialists, and all non-professional employees,
guards and supervisors as defined in the Act.
The Union continues to be the exclusive represent-
ative under Section 9(a) of the Act.
B. Refusal to Bargain
Since 21 April 1982 the Union has requested the
Company to bargain, and since 14 May 1982 the
Company has refused. We find that this refusal
constitutes an unlawful refusal to bargain in viola-
tion of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
By refusing on and after 14 May 1982 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company 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 ini-
tial period of the certification as beginning the date
the Respondent begins to bargain in good faith
with the Union. 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); Burnett Construction
Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d
57 (10th Cir. 1965). Finally, regarding the apparent
closing of the Riverside School subsequent to the
certification, the unit description in the Order and
notice is subject to the deletion of the reference to
the Riverside School should it no longer be in ex-
istence.
ORDER
The National Labor Relations Board orders that
the Respondent, Baldwin League of Independent
Schools, New York, New York, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with United
Federation of Teachers, Local Union No. 2, 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 ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) On request, bargain with the Union as the ex-
clusive representative of the employees in the fol-
lowing appropriate unit on terms and conditions of
employment and, if an understanding is reached,
embody the understanding in a signed agreement:
All part-time subject matter teachers and read-
ing tutors employed by the Employer at Bald-
win, Emerson and Riverdale Schools, exclud-
ing full-time classroom teachers, part-time
learning disabilities specialists and reading spe-
cialists, and all non-professional employees,
guards and supervisors as defined in the Act.
(b) Post at its facilities in New York City, New
York, copies of the attached notice marked "Ap-
pendix."' Copies of the notice, on forms provided
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 Nation-
al 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 "
BALDWIN LEAGUE OF SCHOOLS, 985
by the Regional Director for Region 2, after being
signed by the Respondent 's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt 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.
(c) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply..
IT IS FURTHER ORDERED that Case 2-CA-18638
is severed from Case 2-CA-18886 and that it be re-
manded to the Regional Director for Region 2 for
further appropriate action.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
United Teachers, American Federation of Teach-
ers, AFL-CIO as the exclusive 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 exer-
cise 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 bargaining unit:
All part-time subject matter teachers and read-
ing tutors employed by the Employer at Bald-
win, Emerson and Riverside Schools , exclud-
ing full-time classroom teachers, part-time
learning disabilities specialists and reading spe-
cialists, and all non-professional employees,
guards and supervisors as defined in the Act.
BALDWIN LEAGUE OF INDEPENDENT
SCHOOLS
The National Labor Relations Board has found
that we violated the National - Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain with United
Federation of Teachers , Local 2, New York State