N.L.R.B. v. Parsons School of Design a Div. of New School for Social Research, No. 1353

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore FEINBERG, Chief Judge, and KAUFMAN and NEWMAN; FEINBERG
Citation793 F.2d 503
Docket NumberNo. 1353,D
Decision Date24 June 1986
Parties122 L.R.R.M. (BNA) 2845, 104 Lab.Cas. P 11,904 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. PARSONS SCHOOL OF DESIGN A DIVISION OF the NEW SCHOOL FOR SOCIAL RESEARCH, Respondent. ocket 86-4019.

Page 503

793 F.2d 503
122 L.R.R.M. (BNA) 2845, 104 Lab.Cas. P 11,904
NATIONAL LABOR RELATIONS BOARD, Petitioner,
v.
PARSONS SCHOOL OF DESIGN A DIVISION OF the NEW SCHOOL FOR
SOCIAL RESEARCH, Respondent.
No. 1353, Docket 86-4019.
United States Court of Appeals,
Second Circuit.
Argued May 30, 1986.
Decided June 24, 1986.

Page 504

Joseph Porrino, New York City (Putney, Twombly, Hall & Hirson, of counsel), for respondent.

Susan L. Williams, Attorney, N.L.R.B., Washington, D.C. (Rosemary M. Collyer, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Collis Suzanne Stocking, Attorney, N.L.R.B., Washington, D.C., of counsel), for petitioner.

Before FEINBERG, Chief Judge, and KAUFMAN and NEWMAN, Circuit Judges.

FEINBERG, Chief Judge:

The National Labor Relations Board applies for enforcement of its order against Parsons School of Design. The Board found that Parsons violated section 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 158(a)(5) and (1), by refusing to bargain with the certified representative of its part-time faculty. The Board concluded that post-election modification of the bargaining unit from a combined unit of full- and part-time faculty members to one including only part-time faculty did not require a new election. In reaching its decision, the Board distinguished a prior decision of this court, Hamilton Test Systems, New York, Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984). We hold that the Board's modification of the unit requires a new election and that Hamilton, supra, applies to the facts of this case. Accordingly, we deny the Board's application for enforcement.

I.

Parsons School of Design, a division of the New School for Social Research, is an educational institution offering college and graduate courses in art and design. The school's main campus is located in New York City; it also has branches in Los Angeles and Paris. Parsons employs approximately 20 full-time and 200 part-time instructors at its New York campus. Typically, the part-time instructors are successful practitioners in their particular fields. In August 1982, the Parsons Faculty Federation, New York State United Teachers, American Federation of Teachers, AFL-CIO (the Union) filed a representation petition with the Board. The Union initially sought to represent all full-time and part-time instructors employed at Parsons' New York campus. The Union later amended its petition to include only part-time instructors, although it indicated that it was willing to represent the larger unit. After a hearing, the Board's Regional Director determined that an appropriate unit included both full- and part-time faculty at Parsons' New York campus and directed that an election in that unit be held on May 9-12, 1983. The Regional Director denied Parsons' motion for reconsideration.

Page 505

Parsons filed a request for review of the Regional Director's decision, arguing that a combined unit was inappropriate and that a unit of part-time faculty only would also be inappropriate. Shortly before the scheduled election, the Board granted the employer's request for review. The Board decided, however, that the election should proceed and the ballots of full- and part-time instructors should be segregated and then impounded according to the "vote and impound" procedures set forth in 29 C.F.R. Sec. 102.67(b). 1 The Board provided two ballot boxes, one for full-time instructors and one for part-time. The ballots for full- and part-time faculty were identical. The Board's representatives did not explain why separate boxes were used unless asked. The election was held as scheduled in May 1983.

In February 1984, the Board issued a Decision on Review and Direction of Election. Finding that a unit limited to part-time instructors was appropriate, the Board modified the Regional Director's earlier unit determination. Apparently unaware that an election had been held in the combined unit, the Board also directed that an election be held in the modified unit. Several weeks later, the Board amended its decision to eliminate that portion directing an election and remanded the matter to the Regional Director to open and count the ballots impounded in the May 1983 election. The amended decision is reported at 268 N.L.R.B. 1011 (1984).

Parsons objected to the election, claiming that the results should be set aside because the official notice of election described a unit different from the one the Board later found appropriate and, thus, the voters were prevented from making an informed decision. The Regional Director overruled these objections, holding that the unit determination "had no bearing as to whether the voters desired Union representation" and that there was no evidence that employees would have changed their votes if they had known that a part-time unit had been found appropriate. The Board summarily denied Parsons' request for review of that decision. After various challenges were resolved, there were 99 ballots for the Union and 92 against.

The Board certified the Union as the exclusive representative of the part-time faculty in October 1984. However, Parsons refused the Union's request to bargain, and the Union filed an unfair labor practice charge against Parsons. The Board's General Counsel issued a complaint and moved for summary judgment. In response, Parsons acknowledged its refusal to bargain, but argued that it was justified. Citing Hamilton, supra, decided several months earlier, Parsons maintained that certification of the Union as representative of the part-time unit was invalid because the voters had been misled as to the scope of the unit. In a decision reported at 275 N.L.R.B. No. 18 (1985), the Board held that all issues were or could have been litigated in the prior representation proceeding and concluded that the employer unlawfully refused to bargain with the Union. The Board distinguished Hamilton principally because the new unit excluded less than 10% of the employees previously included. This application for enforcement followed.

II.

The central issue raised by the Board's application is the extent to which Hamilton-

Page 506

applies to this case. In Hamilton, the Board initially certified a unit consisting of all 31 non-clerical employees at one of the employer's facilities. On the eve of the election, however, the Board granted the Union's request for review of the unit determination. It nonetheless conducted a scheduled election in the original unit and segregated and impounded the ballots pursuant to section 102.67(b). The Board later decided that a smaller, 14-employee unit was appropriate and determined that, of the ballots cast in the smaller unit, the union had won by a margin of two votes. The employer petitioned this court for review of the Board's finding that it committed an unfair labor...

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9 practice notes
  • United States v. Davis, No. 14–CR–0567 (MKB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 1, 2015
    ...search incident to arrest when it was clear officers were not going to arrest defendant until weapon was found); see also Donaldson, 793 F.2d at 503 (noting that the bootstrapping problem does not arise when the defendant's "criminal knowledge and intent were plain, and the agents were well......
  • Blue Mountain Mushroom Co. v. PLRB
    • United States
    • Pennsylvania Commonwealth Court
    • July 27, 1999
    ...and Rehabilitation Services, 120 F.3d 262 (4th Cir.1997) (one job classification removed from unit); NLRB v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986) (one job classification removed from unit); NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir.1985) (one job classificati......
  • Nightingale Oil Co. v. N.L.R.B., No. 89-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...which courts of appeals have held that use of the Board's vote-and-impound procedure was improper. See NLRB v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986); NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (1985); Hamilton Test Systems, N.Y., Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984)......
  • N.L.R.B. v. Aaron's Office Furniture Co., Inc., No. 86-1505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 3, 1987
    ...reduced the initially certified bargaining unit by less than 10 percent. National Labor Relations Board v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986). While acknowledging that the size of the post-election modification of the bargaining unit was a relevant consideration in determi......
  • Request a trial to view additional results
9 cases
  • United States v. Davis, No. 14–CR–0567 (MKB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • July 1, 2015
    ...search incident to arrest when it was clear officers were not going to arrest defendant until weapon was found); see also Donaldson, 793 F.2d at 503 (noting that the bootstrapping problem does not arise when the defendant's "criminal knowledge and intent were plain, and the agents were well......
  • Blue Mountain Mushroom Co. v. PLRB
    • United States
    • Pennsylvania Commonwealth Court
    • July 27, 1999
    ...and Rehabilitation Services, 120 F.3d 262 (4th Cir.1997) (one job classification removed from unit); NLRB v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986) (one job classification removed from unit); NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir.1985) (one job classificati......
  • Nightingale Oil Co. v. N.L.R.B., No. 89-1886
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • March 8, 1990
    ...which courts of appeals have held that use of the Board's vote-and-impound procedure was improper. See NLRB v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986); NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (1985); Hamilton Test Systems, N.Y., Inc. v. NLRB, 743 F.2d 136 (2d Cir.1984)......
  • N.L.R.B. v. Aaron's Office Furniture Co., Inc., No. 86-1505
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 3, 1987
    ...reduced the initially certified bargaining unit by less than 10 percent. National Labor Relations Board v. Parsons School of Design, 793 F.2d 503 (2d Cir.1986). While acknowledging that the size of the post-election modification of the bargaining unit was a relevant consideration in determi......
  • Request a trial to view additional results

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