Golden Gate University

National Labor Relations Board - Board Decisions

Sep 8, 1981

257 N.L.R.B. 1207 (N.L.R.B. 1981)

GOLDEN GATE UNIVERSITY
Golden Gate University and Office & Professional
Employees International Union, Local No. 3,
AFL-CIO. Case 20-CA-16162
September 8, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a charge filed on April 9, 1981,' by Office
& Professional Employees International Union,
Local No. 3, AFL-CIO, herein called the Union,
and duly served on Golden Gate University, herein
called Respondent, the General Counsel of the Na-
tional Labor Relations Board, by the Acting Re-
gional Director for Region 20, issued a complaint
on May 15, against Respondent, alleging that Re-
spondent 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 and complaint
and notice of hearing before an administrative law
judge were duly served on the parties to this pro-
ceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on March 19,
following a Board election in Case 20-RC-14968,
the Union was duly certified as the exclusive col-
lective-bargaining representative of Respondent's
employees in the unit found appropriate;2 and that,
commencing on or about April 2, and at all times
thereafter, Respondent has refused, and continues
to date to refuse, to furnish the Union with request-
ed information necessary for and relevant to its
performance of its function as the exclusive bar-
gaining representative,3 and to bargain collectively
with the Union as the exclusive bargaining repre-
sentative, although the Union has requested and is
requesting it to do so. On May 28, Respondent
filed its answer to the complaint admitting in part,
'All dates herein are 1981, unless otherwise indicated.
Official notice is taken of the record in the representation proceeding,
Case 20-RC-14968, 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
LTV Electrosystems. Inc., 166 NLRB 938 (1967), enfd. 388 F.2d 683 (4th
Cir. 1968); Golden Age Beverage Co., 167 NLRB 151 (1967), enfd. 415
F.2d 26 (5th Cir. 1969); Intertype Co. v. Penello, 269 F.Supp. 573
(D.CVa. 1967); Follett Corp., 164 NLRB 378 (1967), enfd. 397 F.2d 91
(7th Cir. 1968); Sec. 9(d) of the NLRA, as amended.
I The information which the Union has requested Respondent to pro-
vide is the names, addresses, and phone numbers of each individual em-
ployee, with the date of hire, classification, department, and rate of pay
for each employee, list of benefits available to employees, summary of
personnel policies whether written or unwritten regarding sick leave, va-
cations, holidays, working hours, classifications and salary rates for each,
job descriptions, salary review procedures, salary increases and promo-
tions, and copies of any handbooks and manuals or memorandums reflect-
ing the above policies.
257 NLRB No. 155
and denying in part, the allegations in the com-
plaint.
On June 18, counsel for the General Counsel
filed directly with the Board a Motion for Sum-
mary Judgment. Subsequently, on June 24, 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 Judg-
ment should not be granted. Respondent thereafter
filed a response to the Notice To Show Cause.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority 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, Respondent
denies, inter alis, that the unit found appropriate in
Case 20-RC-14968 constitutes a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act. Respondent
further denies that the Union is the exclusive col-
lective-bargaining representative of the employees
in the unit. Additionally, Respondent denies that
the information requested by the Union (as de-
scribed in fn. 3, supra) is necessary for and relevant
to the Union's performance of its collective-bar-
gaining function. Finally, Respondent asserts in its
answer to the complaint that the Certification of
Representative issued to the Union in Case 20-RC-
14968 is faulty, void, invalid, and contrary to law.
The General Counsel argues that all issues raised
by Respondent in this proceeding were resolved in
the underlying representation proceeding. The
General Counsel further asserts that, Respondent
having admitted in its answer to the complaint that
the Union requested Respondent to recognize and
bargain with it as the exclusive collective-bargain-
ing representative of the employees in the unit
found appropriate, and that Respondent refused the
Union's request, there are no issues of fact or law
requiring a hearing in this proceeding. We agree
with the General Counsel.
Review of the record in this case, including the
record in the representation proceeding, Case 20-
RC-14968, establishes that pursuant to a Stipulation
for Certification Upon Consent Election, approved
by the Regional Director for Region 20 on January
30, 1980, an election was conducted on March 4,
1980. The tally was 32 votes for, and 36 votes
against, the Union, with 16 challenged ballots, a
sufficient number to affect the results of the elec-
tion. Subsequently, Respondent filed "Objections to
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conduct of the Election and Conduct Affecting
the Outcome of the Election."
The Regional Director investigated the chal-
lenges to ballots and concluded that substantial and
material issues of fact existed concerning the eligi-
bility of the 16 challenged voters which could best
be resolved by a hearing. Accordingly, a hearing
was conducted on April 3, 1980, and on June 3,
1980, the Hearing Officer issued his report on the
challenged ballots, in which he recommended that
the challenges to 5 ballots be sustained and the
challenges to 11 ballots be overruled, and that
those latter ballots be opened and counted.
Subsequently, Respondent filed exceptions to the
Hearing Officer's report on the challenged ballots.
On September 26, 1980, the Board issued its Deci-
sion and Direction,4 in which it adopted the Hear-
ing Officer's findings and recommendations in
regard to the challenged ballots, and directed that
the 11 ballots for which the challenges were over-
ruled be opened and counted.
On October 8, 1980, the 11 challenged ballots
were opened and counted, and a revised tally of
ballots was issued, showing 41 votes for, and 38
votes against, the Union. Thereafter, Respondent
filed "Supplemental Objections to Conduct of
Election, Conduct Affecting Results of Election
and Counting of Challenged Ballots."
On November 17, 1980, the Regional Director
issued her report on Respondent's objections in
which she recommended that those objections be
overruled. Thereafter, Respondent filed exceptions
to the Regional Director's Report on Objections.
On March 19, 1981, the Board issued its Supple-
mental Decision and Certification of Representa-
tive,5 in which it adopted the Regional Director's
findings and recommendations in regard to Re-
spondent's objections and issued a Certification of
Representative certifying the Union as the exclu-
sive representative of the employees in the unit
found appropriate for the purposes of collective
bargaining.
In its answer to the Notice To Show Cause, Re-
spondent renews the contentions it earlier put forth
in support of its exceptions to the Regional Direc-
tor's Report on Objections.
It is well settled that in the absence of newly dis-
covered or previously unavailable evidence or spe-
cial circumstances a respondent in a proceeding al-
leging 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. 6
Not included in volumes of Board Decisions.
"Not included in volumes of Board Decisions.
; See Pitisburgh Plate Glu/a Co. v. AN.L.R., 313 U.S 146, 162 (1941):
Rules and Regulations of the Board. Secs. 102.67(f) and 102 69(c).
All issues raised by Respondent in this proceed-
ing were or could have been litigated in the prior
representation proceeding, and Respondent does
not offer to adduce at a hearing any newly discov-
ered 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. Accordingly, we 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 now, and has been at times materi-
al herein, a California corporation, with an office
and place of business in San Francisco, California,
where it is engaged in the operation of a nonprofit,
tax-exempt educational institution providing under-
graduate and graduate programs. During the past
calendar year, Respondent, in the course and con-
duct of its operations, received gross revenues (ex-
cluding revenues not available for operating ex-
penses) in excess of $1 million. During the same
period, Respondent has purchased and received
goods and services valued in excess of $10,000 di-
rectly from suppliers located outside the State of
California.
We find, on the basis of the foregoing, that Re-
spondent 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.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
II111. THE UNFAIR I.ABOR PRACTICES
A. The Representation Proceeding
1. The unit
The following employees of Respondent consti-
tute a unit appropriate for collective-bargaining
purposes within the meaning of Section 9(b) of the
Act:
All regular full-time employees employed by
the Employer in the City and County of San
Francisco, excluding part-time employees, pro-
fessional employees, confidential employees,
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GOLDEN GATE UNIVERSITY
managerial employees, faculty, and guards and
supervisors as defined in the Act.
2. The certification
On March 4, 1980, a majority of the employees
of Respondent in said unit, in a secret-ballot elec-
tion conducted under the supervision of the Re-
gional Director for Region 20, designated the
Union as their representative for the purpose of
collective bargaining with Respondent.
The Union was certified as the collective-bar-
gaining representative of the employees in said unit
on March 19, 1981, 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 March 26, 1981, and at
all times thereafter, the Union has requested Re-
spondent to furnish the Union with information
necessary for and relevant to its performance of its
function as the exclusive bargaining representative,
and 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 April 2, 1981, and continuing at all
times thereafter to date, Respondent has refused,
and continues to refuse, to furnish the Union with
the aforementioned requested information, and to
recognize and bargain with the Union as the exclu-
sive representative for collective bargaining of all
employees in said unit.
Accordingly, we find that Respondent has, since
April 2, 1981, and at all times thereafter, refused to
bargain collectively with the Union as the exclu-
sive representative of the employees in the appro-
priate unit, and that, by such refusal, Respondent
has engaged in and is engaging in unfair labor prac-
tices 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 oper-
ations described in section I, above, have a close,
intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and
tend to lead to labor disputes burdening and ob-
structing 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 (1) of the Act, we
shall order that it cease and desist therefrom, and,
upon request furnish the Union with the names, ad-
dresses, and phone numbers of each individual em-
ployee, with the date of hire, classification, depart-
ment, and rate of pay for each employee, list of
benefits available to employees, summary of per-
sonnel policies whether written or unwritten re-
garding sick leave, vacations, holidays, working
hours, classifications and salary rates for each, job
descriptions, salary review procedures, salary in-
creases and promotions, copies of any handbooks
and manuals or memorandums reflecting the above
policies, and any other information necessary for
and relevant to its performance of its function as
the exclusive bargaining representative, and bargain
collectively with the Union as the exclusive repre-
sentative 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 ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided
by law, we shall construe the initial period of certi-
fication as beginning on the date Respondent com-
mences to bargain in good faith with the Union as
the recognized bargaining representative in the ap-
propriate 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 (5th Cir. 1964), cert. denied 379 U.S. 817;
Burnett Construction Company, 149 NLRB 1419,
1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965).
The Board, upon the basis of the foregoing facts
and the entire record, makes the following:
CONCLUSIONS OF LAW
1. Golden Gate University is an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Office & Professional Employees International
Union, Local No. 3, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. All regular full-time employees employed by
the Employer in the City and County of San Fran-
cisco; excluding part-time employees, professional
employees, confidential employees, managerial em-
ployees, faculty, and guards and supervisors as de-
fined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. Since March 19, 1981, 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-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining within the meaning of Section 9(a)
of the Act.
5. By refusing on or about April 2, 1981, and at
all times thereafter, to furnish the Union with re-
quested information necessary for and relevant to
its performance of its functions as the exclusive
bargaining representative, and to bargain collec-
tively 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 Sec-
tion 8(a)(5) of the Act.
6. By the aforesaid refusal to provide information
and refusal to bargain, Respondent has interfered
with, restrained, and coerced, and is interfering
with, restraining, and coercing, employees in the
exercise of the rights guaranteed them in Section 7
of the Act, and thereby has engaged in and is en-
gaging 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
meaning 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 Re-
lations Board hereby orders that the Respondent,
Golden Gate University, San Francisco, California,
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 Office & Profes-
sional Employees International Union, Local No. 3,
AFL-CIO, as the exclusive bargaining representa-
tive of its employees in the following appropriate
unit:
All regular full-time employees employed by
the Employer in the City and County of San
Francisco; excluding part-time employees, pro-
fessional employees, confidential employees,
managerial employees, faculty, and guards and
supervisors as defined in the Act.
(b) Refusing to provide the Union with informa-
tion necessary for and relevant to its performance
of its function as the exclusive bargaining repre-
sentative.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise 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 understanding is reached, embody such under-
standing in a signed agreement.
(b) Upon request, provide the Union with the
names, addresses, and phone numbers of each indi-
vidual employee, with the date of hire, classifica-
tion, department, and rate of pay for each employ-
ee, list of benefits available to employees, summary
of personnel policies whether written or unwritten
regarding sick leave, vacations, holidays, working
hours, classifications, and salary rates for each, job
descriptions, salary review procedures, salary in-
creases and promotions, copies of any handbook
and manuals or memorandums reflecting the above
policies, and any other information necessary for
and relevant to its performance of its function as
the exclusive bargaining representative.
(c) Post at its San Francisco, California, facility
copies of the attached notice marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 20, after being duly
signed by Respondent's representative, 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 Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 20,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
7 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 Pursu-
ant 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 Office & Professional Employees Interna-
tional Union, Local No. 3, AFL-CIO, as the
1210
GOLDEN GATE UNIVERSITY
exclusive representative of the employees in
the bargaining unit described below.
WE WILL NOT refuse to provide Office &
Professional Employees International Union,
Local No. 3, AFL-CIO, with requested infor-
mation necessary for and relevant to its per-
formance of its function as the exclusive bar-
gaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees 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 repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All regular full-time employees employed by
the Employer in the City and County of San
Francisco; excluding part-time employees,
professional employees, confidential employ-
ees, managerial employees, faculty, and
guards and supervisors as defined in the Act.
WE WILL, upon request, provide the above-
named Union with the names, addresses, and
phone numbers of each individual employee,
with the date of hire, classification, depart-
ment, and rate of pay of each employee, list of
benefits available to employees, summary of
personnel policies whether written or unwrit-
ten regarding sick leave, vacations, holidays,
working hours, classifications and salary rates
for each, job descriptions, salary review proce-
dures, salary increases and promotions, copies
of any handbooks and manuals or memoran-
dums reflecting the above policies, and any
other information necessary for and relevant to
its performance of its function as the exclusive
bargaining representative.
GOLDEN GATE UNIVERSITY
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