Massachusetts Institute of Technology

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluded employees in the Service Building and other locations. More- over, they work in close proximity occasionally with many, and regu- larly with a substantial number of, other employees who are engaged in similar duties. Therefore, in all the circumstances, particularly the functional integration of the work of the employees in the unit sought with that of other employees, we find that the unit is not appropriate, and we shall dismiss the petition." [The Board dismissed the petition.] a Sears, Roebuck k Co., 149 NLRB 1525. Massachusetts Institute of Technology and Research, Develop- ment and Technical Employees Union , Petitioner. Case No. 1-RC-8166. May 13,1965 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, as amended, a hearing in this case was held before Hearing Officer Orlando Rodio. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Jenkins]. Upon the entire record in this case, including the briefs of the par- ties, the Board makes the following findings : The Petitioner seeks to represent a unit consisting of certain employ- ees working at the Computation Center of the Massachusetts Institute of Technology. The Employer, hereinafter also referred to as the Institute, concedes that it is engaged in commerce within the meaning of the Act, but contends that since the activities of the Computation Center are educational rather than commercial in nature, the Board, in the exercise of its discretion, should not assert jurisdiction in this proceeding. The Employer is an independent, nonprofit, educational institution located at Cambridge, Massachusetts. It is organized into five aca- demic schools; namely, Architecture and Planning, Engineering, Humanities and Social Sciences, Management, and Science. There are about 7,000 students at the Institute, more than 3,500 of whom are studying for undergraduate degrees. There are also about 800 mem- bers of the faculty and a supporting teaching staff of 600. The Insti- tute is located on a residential campus of 120 acres fronting the Charles 152 NLRB No. 64. MASSACHUSETTS INSTITUTE OF TECHNOLOGY 599 River in Cambridge, opposite Boston. In addition to the Institute's teaching and research laboratories, there are also a number of inter- departmental laboratories which were established to facilitate research in fields crossing the lines of traditional disciplines. One of these interdepartmental laboratories is the Computation Center, the facility involved herein. The Computation Center was established in 1956 as a joint under- taking of the Institute and the International Business Machines Cor- poration, herein referred to as IBM. The operating agreement between the Institute and IBM provides that the Computation Center shall be devoted to "education, research and problem solution in the field of machine methods of data processing." In order further to encourage the broad goals of the Center, the operating agreement provides that other institutions of higher learning in the New England area shall be invited to participate in its program without charge; at the present time, about 50 colleges and universities utilize the facilities of the Cen- ter.'- The Center occupies part of the basement, most of the first floor, and a part of the second floor of Building 26, which is located in the middle of the campus. The Center was constructed by the Institute with funds received from IBM, and IBM is the largest financial con- tributor to the Center. Thus, IBM provides the basic 7094 computer and its auxiliary equipment, assumes responsibility for the ma;nte- nance of these machines, provides funds to cover a large part of the Center's operating expenses, and provides approximately $60,000 per year to support the IBM Research Appointment Program.2 On the other hand, the Institute is alone responsible for the operation and administration of the Center. The director of the Center, Professor Philip M. Morse, is responsible to the vice president for research administration of the Institute. The Computation Center is available to employees of the Institute for 7 hours per day and to the participating colleges and universities for a like period. IBM has exclusive use of the Center for its own pur- poses, namely program and language development, for 7 hours per day. However, IBM's employees, whom the Petitioner does not seek to represent, have little, if any, contact with Institute personnel. The Center is utilized for research primarily by faculty members and by graduate and undergraduate students working under the supervision of faculty members. Thus, for example during the period between July 1 and December 31, 1963, the computers at the Center were used in connection with 696 problems; 37 percent of these problems were initiated by members of the faculty of the Institute and participating 'In the 6-month period July through December 1963, the Institute utilized the com- puters at the Center in connection with 551 problems and for a total of 1,316 hours ; other universities made such use in connection with 145 problems and for a total of 205 hours. 2 During fiscal 1965, the Center budgeted $948,000 for operating expenses, of which sum IBM contributed $688,000. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD institutions, and 49 percent were initiated by graduate students; fur- ther, 41 percent of these problems were related to theses; 6 percent were related to classroom work; and the remainder to various forms of research activity. Additionally, during the month of November 1964, 81 applications for use of the Center were approved by the Institute; of the applicants, 70 were graduate students of the Institute and 11 were faculty and graduate students of the participating educational institutions. In order to make use of the Center, the faculty member or student must first obtain the approval of the head of his department and then must file an application with the Center; if a committee of the Center approves the application, the applicant's material is processed at the Center, and the applicant receives the results in printed form. The applicant then makes a report which is submitted to the Center .3 The faculty member may publish the results or use them in connection with this teaching; the student may base his thesis on the results of the research. A portion of the work done at the Center is sponsored, through the Institute's division of sponsored research, in whole or in part by Government agencies and commercial firms. Thus, a faculty member who wishes to obtain financial aid for his research project consults with the division of sponsored research which submits the faculty member's proposal to prospective sponsors, including govern- mental and commercial firms. The division of sponsored research, which is purely an administrative agency of the Institute, is respon- sible for negotiating any contracts which may result and for the admin- istration of all such contracts except those at the Lincoln Laboratory .4 During the period between July 1 and December 31, 1963, 43 percent of the problems originating at the Institute for which computers at the center were used were supported through the division of sponsored research. The Institute pays the salary of faculty members engaged in sponsored research, and these faculty members may be released from such teaching duties to allow them more time to work on the projects. The sponsors receive a copy of the final report prepared by the faculty member who headed the project, and in many cases scientific reports based on the research are disseminated. IBM also provides funds for training for members of the faculty and graduate students who are known as IBM research associates or assistants. Between July and December 1963, the computers located at the Cen- ter were being used in connection with approximately 43 courses at the S As indicated below, where the project is sponsored by the Government or a commercial firm, it will also receive a copy of the report; copies of the report are apparently also given to the department of the university involved. 'Lincoln Laboratory is a project which was undertaken by the Institute exclusively for the Defense Department. See Massachusetts Institute of Technology (Lincoln Laboratory), 110 NLRB 1611. MASSACHUSETTS INSTITUTE OF TECHNOLOGY 601 Institute and the other participating institutions, and approximately half of these courses were concerned directly with the teaching of com- putation processes and programing methods. The Center also sponsors a series of seminars which are held during the academic year at which leading researchers in the fields of machine computation and computer technology are invited to speak. Also under the management and operation of the Center are two other facilities, the so-called project MAC 5 and the cooperative com- puter laboratory, herein referred to as CCL. Project MAC is located on Technology Square, adjoining the campus, and contains equipment similar to that in the Center. It is sponsored by the Office of Naval Research on behalf of the Advanced Research Project Agency of the Department of Defense and was established for a specific research function, namely, the compatible time-sharing system (CTSS).6 The Center furnishes the personnel who operate project MAC's large IBM 709 computer, its auxiliary equipment, and several other computers and card-punching equipment. CCL is used primarily by the Insti- tute's research groups in nuclear science and houses a 709 computer purchased from IBM. CCL was, however, due to be terminated as of March 1, 1965. Section 2 (2) of the Act, which defines the term "employer," does not expressly exclude educational or research institutions. However, the legislative history of that section shows clearly that when the 1947 amendments were enacted, Congress was aware of the Board's policy that "only in exceptional circumstances and in connection with purely commercial activity of such [nonprofit] organizations have any of the activities of such organizations or of their employees been considered as affecting commerce so as to bring them within the National Labor Relations Act." 7 In the Columbia University case, the Board reem- phasized its intention not to assert jurisdiction over nonprofit educa- tional institutions "where the activities involved are non-commercial in nature and intimately connected with the charitable purposes and educational activities of the institution." 8 There, the Board decided that the operation of the Columbia University library was both non- commercial and intimately connected with the university's educational purposes, and accordingly declined to assert jurisdiction. On the 6 MAC is an acronym derived from two titles: "Machine-Aided Cognition," which ex- presses the broad project objective , and "Multiple-Access Computers," which describes its major tool. 6 This is a system whereby several problems may be fed into the machine at one time for solution without having to wait for the computer to solve one problem before another may be fed into it 7 Rept. No. 510, 80th Cong , 1st sess. p. 32; 1 Leg. Hist . of the Labor-Management Relations Act of 1947, 505, 536 See also, Office Employees International Union, Local 11 v. N.L.R.B., 353 U S 313, 318, 319. 6 Trustees of Columbia University in the City of New York, 97 NLRB 424, 427. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other hand, where the activities involved were commercial in the gen- erally accepted sense of the term, the Board has not exempted the non- profit institution from the operation of the Act.' The Petitioner contends that the activities of the Center are of a commercial character and warrant the assertion of jurisdiction over its operations. However, as the Center's research program is in our view an integral part of the Institute's educational function, it would not effectuate the purposes of the Act to assert jurisdiction herein. Thus; the Center is owned and operated by the Institute; its purpose is to provide the Institute and other educational institutions with a facility for "education, research and problem solution"; the Center is utilized in connection with courses at the Institute and its operations are other- wise closely linked with those of the Institute; the Center is utilized for research primarily by faculty members and students at the Insti- tute and at other participating universities; the results of research at the Center contribute directly to the educational function of these insti- tutions; and while the Center is in large measure supported by IBM, the employees sought perform no activity directly for the benefit of IBM or any commercial firms.'° The Petitioner, in urging that we should assert jurisdiction over the Center, relies particularly on our decisions in Woods Hole Oceano- graphic Institution 11 and Massachusetts Institute of Technology (Lincoln Laboratory) ." However, the oceanographic institution in Woods Hole was neither itself a degree-conferring institution nor was it connected with such institution; virtually its sole function was the performance of research for the Federal Government. In those cir- cumstances, the Board found in Woods Hole that the institution was u See, for example , The Sunday School Board of the Southern Baptist Convention, 92 NLRB 801 (a corporation editing and publishing religious literature ) ; Port Arthur Col- lege, 92 NLRB 152 (a college operating a commercial radio station). 10 Although IBM employees utilize the Center during one 7-hour shift , as noted, the Petitioner does not seek these IBM employees and they have virtually no contact with Institute employees at the Center. Under the operating agreement between IBM and the Institute , if an employee of the Institute makes or conceives any invention in connection with the Center's machines , IBM receives a nonexclusive , paid-up, royalty-free license throughout the world to practice such invention ; and, in the event the Institute elects not to file a patent application on the invention , IBM may file on behalf of the Institute an appropriate patent application . While under these contract provisions , IBM would obtain certain benefits from the operations of the Center , we believe that this factor is outweighed by the educational aspects of the Center's operations . In this latter respect, this case differs materially from California Institute of Technology, 102 NLRB 1402, where the Board asserted jurisdiction over a wind tunnel operated by the Institute. There, the tunnel was sponsored , financed , and owned by five aircraft firms, these firms used the tunnel to test model aircraft ; the staff of the tunnel consulted with the aircraft companies to determine how to use the tests ; employees of the aircraft companies par- ticipated in the testing of models ; and the Institute issued an individual report to the participating companies . It is apparent that there , unlike here , the wind tunnel was oper- ated substantially for the direct benefit of commercial firms. 11 143 NLRB 568. 'l Supra, footnote 4 MASSACHUSETTS INSTITUTE OF TECHNOLOGY 603 "literally in the business of doing business with the Federal Govern- ment" in much the same fashion as a profit-making concern, and that its activity was beneficial to private industry and exerted a substantial impact upon commerce. Here, however, the Center's research activities are, as noted, intimately connected with, and an integral part of, the educational program of the Institute and other concededly nonprofit educational institutions. In Massachusetts Institute of Technology (Lincoln Laboratory), supra, the Board, relying on the facts that the Institute undertook the Lincoln Laboratory project exclusively for the Defense Department, the project was wholly financed by the Federal Government and was classified, and the research was performed in a laboratory situated 18 miles from the Institute's campus and was not intimately associated with the Institute's educational programs, found that the Lincoln Laboratory met the Board's standards for assertion of jurisdiction over establishments affecting national defense. Here, however, it is not contended, and the record does not show, the Center has any impact on national defense. More apposite, we believe, is the Board's recent decision in Univer- sity of Miami, Institute of Marine Science Division,13 where the Board refused to assert jurisdiction over a vessel operated for research pur- poses by the University's Institute of Marine Science. Distinguishing the Woods Hole case, the Board found that although the Institute was substantially supported by the Federal Government, its research activ- ities "contribute directly to its curriculum and program for the prac- tical training of scientists," and therefore, the research program was "an integral aspect of the Institute's overall educational function." In reaching this conclusion, the Board relied, among other things, on the facts, also present here, that the operations of the Institute were controlled by the university; all research projects were integrated with the university's educational program and had an "educational connota- tion"; ideas for research projects originated with the professional staff; and research at the Institute was frequently used as a basis for sem- inars and for use in dissertations. On the basis of the foregoing and the entire record, we conclude that the activities of the Center are primarily educational rather than com- mercial in character. We find, accordingly, that it would not effectuate the purposes of the Act to assert jurisdiction herein, and we shall there- fore dismiss the petition.14 [The Board dismissed the petition.] 13 146 NLRB 1448. 14 University of Miami, Institute of Marine Science, supra; Young Men's Christian Asso- ciation of Portland, Oregon, 146 NLRB 20.