Manhattan College

MANHATTAN COLLEGE Manhattan College and American Association of Uni- versity Professors, Manhattan College Chapter, Pe- titioner. Case 2-RC-15630 January 25, 1972 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Mary W. Taylor. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, and by direction of the Regional Direc- tor for Region 2, this case was transferred to the Na- tional Labor Relations Board for decision. The Em- ployer and the Petitioner filed briefs, and the U.S. Department of the Air Force filed a letter of position in the nature of an amicus curiae brief. The Petitioner also filed a reply brief. 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. The Board has reviewed the rulings of the Hearing Officer made at the hearing and finds that they are free from prejudicial error. With the exception noted below, they are hereby affirmed. Upon the entire record in this case,' the Board finds: 1. Manhattan College is a New York corporation engaged in conducting a university for the education of young men and women. Its annual revenues exceed $1 million, of which more than $50,000 is received from outside the State of New York. We find that the Em- ployer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert jurisdiction herein.' 2. The Employer contends that the Petitioner is not a labor organization. A similar contention was made and rejected in Fordham University, 193 NLRB No, 23, which case involved another chapter of the American Association of University Professors as a petitioner. No facts have been shown which support a contrary finding with respect to the Manhattan College chapter. The Intervenor purports to be a local chapter of the New York State Teachers Association, which associa- tion is conceded by the Employer and the Petitioner to ' The Employer concedes that its motion to dismiss the petition on the ground that a substantial number of regular employees were on summer vacation is now moot I For reasons recently set forth in C W. Post Center of Long Island University, 189 NLRB No 109, and Fordham University, 193 NLRB No 23, fn 5, we reject the Employer's contention that it would be improper for the Board to assert jurisdiction over faculty members 65 be a labor organization, and the parent association has been soliciting in its own name the support of faculty members of Manhattan College in selecting it as their collective-bargaining representative. Employer and Pe- titioner contend that the Intervenor, as a purported local affiliate, does not yet exist. The Intervenor's repre- sentative testified that Intervenor is a group of faculty members at Manhattan College who approached the State Association for help in organizing for the purpose of collective bargaining. He also asserted that the re- quest to intervene was being made on behalf of the local chapter and on behalf of the State Association. Since the record leaves the present status of the local in doubt while the status of the State Association as a labor organization is admitted, we find that New York State Teachers Association, as well as the Petitioner, is a labor organization claiming to represent certain em- ployees of the Employer, and we hereby grant its re- quest to intervene, 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks to represent all full-time faculty members and professional librarians, excluding all administrative officers, part-time faculty, ROTC officers, athletic coaches who do not teach, and all other employees.' The Employer contends that the bargaining unit can- not consist of faculty members because they are not employees within the meaning of the Act but super- visors and managerial employees. It contends that if a unit of faculty members is deemed to be appropriate, those on "terminal contracts" should nevertheless be excluded. It agrees with Petitioner on excluding part- time faculty members. Although it formally takes no position on the inclusion or exclusion of ROTC instruc- tors and nonteaching athletic coaches, the Employer, in its brief, presents only arguments for inclusion. The Intervenor seeks a unit similar to that sought by Petitioner, but would include part-time faculty, ROTC officers, and nonteaching coaches. The Hearing Officer was of the view that the Intervenor's showing of inter- est, consisting of one authorization card, was insuffi- cient to allow it to contest the agreement of Employer and Petitioner that part-time faculty be excluded. How- ever, by contending for the inclusion of part-time faculty, the Intervenor is not claiming a unit which differs in substance from that urged by Petitioner and Employer and its showing is sufficient for it to take this position with respect to the composition of the unit. ' The Employer and Petitioner stipulated that all deans, assistant deans, heads of departments, and directors of programs be excluded as administra- tors or supervisors The Intervenor had not yet entered an appearance when these stipulations were entered into and it did not later object thereto. The stipulations are hereby accepted. 195 NLRB No. 23 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Faculty members: With regard to the appropriate- ness of a unit containing faculty members, the conten- tions of the Employer amount to nothing less than a request to the Board to reconsider its decisions in C W. Post, supra, and Fordham University, supra. The facts relating to the status and functions of the faculty mem- bers here are virtually indistinguishable from those pre- sented in these recent cases . That faculty members par- ticipate, by various means, in decisions regarding the operation of the college is no more persuasive here than it was in the earlier cases in establishing the faculty members as members of management or as supervisors. As in those cases we find the faculty members to be professional employees under the Act who are entitled to vote for or against collective-bargaining representa- tion. "Terminal contract " faculty members: Contracts of employment for faculty members are for 1 year at a time. When it is determined that a faculty member without tenure will not be rehired after his current contract expires, he is so notified several months beforehand and is considered thenceforth to be on "ter- minal contract." The Employer argues that this pro- spective separation from the faculty requires that those on "terminal contract" be excluded from the unit. There is no evidence to suggest that those currently on "terminal contract" were hired other than as perma- nent employees, subject to termination the same as any other employee in the unit . While they remain on the faculty they have a substantial community of interest with their colleagues and will be eligible to vote if so employed at the time of the election . In such circum- stances, the Board does not make inquiry as to the expectation of employment beyond the election. Whit- ing Corporation, 99 NLRB 117, 122. Part-timefaculty: The normal teaching load for full- time faculty members is 12 hours per week on the undergraduate level and 9 hours on the graduate level. In addition, there are approximately 64 part-time faculty members who teach either day or evening courses and for whom there is no standardized weekly teaching load. The situations of these teachers appears to be substantially the same as that of the part-time teachers in University of New Haven, Inc., 190 NLRB No. 102, and University of Detroit, 193 NLRB No. 95. As in those cases, we hereby designate those part-time faculty members regularly teaching at least one-quarter the normal weekly teaching load for their counterparts on the full-time faculty, as regular part-time faculty members eligible to vote in the election. ROTC faculty. Manhattan College has an aerospace studies department with classes attended by students participating in the Air Force Reserve Officers' Train- ing Program . The faculty of this department consists of Air Force officers who have been assigned to this duty by the Air Force. The college retains the right to reject officers thus referred but accords those who are ac- cepted full status as faculty members , with many of the same nonmonetary benefits as other faculty members, including the opportunity for obtaining tenure. How- ever, this group consists of military personnel who are paid by the Air Force and subject to its military control and discipline even while on this duty assignment with the Employer. Thus, we do not believe that they share sufficient interests in common with the other faculty members to be included in the unit . Accordingly, we shall exclude this group. Non teaching athletic coaches: There are 10 coaches in the athletic department , of whom 3 are also full-time faculty members and are not in dispute . Four others coach part time and do not teach otherwise at the college. Two of the remaining coach full time and the third divides his time between coaching and teaching. Insofar as their coaching • functions are concerned, these individuals are not part of the academic faculty and their contacts with students are not part of the regular academic curriculum of the college . But all have academic degrees and at least one has a master's degree. They are engaged in substantial part in teaching physical and mental skills, utilizing educationally ac- quired knowledge of their specialty . In short, their jobs might well be characterized as the practice of a special- ized form of physical education . The fact that their activities relate to an extracurricular matter, while per- haps of some importance to the students, is less signifi- cant in classifying the nature of the work. We think that these coaches qualify as professional employees under Section 2(12) of the Act. Moreover, the coaching func- tion is closely related to teaching and the coaches share many of the same benefits as other unit employees. In the circumstances, we find that all the full-time and regular part-time' coaches should be included in the unit.' ° As defined above Cf the inclusion of the librarians in the professional unit in C W Post, supra MANHATTAN COLLEGE In accordance with these findings, we conclude that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time faculty of Man- hattan College, including athletic coaches, profes- 6 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Underwear Inc., 156 NLRB 1236; N.L.R.B v Wyman-Gordon Co., 394 U S 759. Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the 67 sional librarians, and those members of the faculty on terminal contracts, but excluding all adminis- trative officers, ROTC officers, all other em- ployees, guards, watchmen, and supervisors. [Direction of Election6 omitted from publication.] Employer with the Regional Director for Region 2 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordi- nary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed