C. W. Post Center of Long Island University

C. W. POST CENTER 453 C. W. Post Center of Long Island University and United Federation of College Teachers, Local 1460, American Federation of Teachers, AFL- CIO, Petitioner. Case 29-RC-1488 July 27, 1972 SUPPLEMENTAL DECISION AND DIRECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board on April 23, 1971,1 an election was conducted on May 10 and 11, 1971, among the employees in the unit found appropriate by the Board. Upon the conclu- sion of the election, the parties were furnished with a tally of ballots which showed that 470 ballots were cast, of which 214 were for and 208 were against the Petitioner, 47 were challenged, and 1 was void. As the challenged ballots were sufficient in number to affect the results of the election, in accordance with the National Labor Relations Board' s Rules and Regulations, Series 8, as amended, the Regional Director conducted an investigation and, on August 6, 1971, issued and duly served upon the parties his report on challenged ballots and notice of hearing. Therein he concluded that the issues of fact had arisen concerning the eligibility of 37 challenged individuals whose status was in dispute and that the eligibility of the 10 remaining challenged voters was left in abeyance when the parties failed to stipulate on their inclusion in or exclusion from the appropri- ate unit. Accordingly, he ordered that a hearing be held to resolve the issues raised by his investigation. Pursuant thereto, a hearing was held before Hearing Officer Herzl S. Eisenstadt, and on Februar- y 17, 1972, the Hearing Officer issued and served on the parties his report and recommendations on challenged ballots. Upon consideration of the evi- dence presented, the Hearing Officer recommended to the Board that (1) the Challenges to the ballots of 9 individuals be sustained for the reason that they are supervisors or managerial employees and their ballots remain unopened and uncounted; (2) the challenges to the ballots of 3 individuals be sustained and their ballots remain unopened and uncounted inasmuch as 2 of them are not professional employ- 189 NLRB No 109 z 195 NLRB No 23 3 The Employer's request for oral argument is hereby denied, as in our opinion the record in this case, including the exceptions and brief, adequately presents the issues and positions of the parties 4 We adopt the Hearing Officer's recommendation that the challenges to the ballots of losue and Palmer be sustained and the challenge to the ballot of Noss be overruled, for the reasons stated by the Hearing Officer In the ees and the third does not fall within any of the included classifications; (3) the challenges to the ballots of 24 individuals be sustained because they were not regular part-time adjunct faculty members on the Employer's payroll as of the period for eligibility as set forth in the Board's Direction of Election and in the Regional Director's notice of election; (4) the challenges to the ballots of 7 individuals be overruled, inasmuch as they were regular part-time members of the faculty, and their ballots and that of a full-time member of faculty be opened and counted; and (5) the challenges to the ballots of 3 individuals be overruled and their ballots be opened and counted inasmuch as at the determi- native time they occupied unit classifications. Thereafter, the Employer filed timely exceptions to the Hearing Officer's report and recommendations, arguing that the election should be set aside since the Board in the subsequent Manhattan College2 case laid down an eligibility standard which differed from that set forth in the direction of election in this case. In the alternative, the Employer excepts to the Hearing Officer's recommendation that challenges be sustained as to the ballots of 19 adjunct professors who did not teach in the spring semester in which the election was conducted but did teach in other semesters. In addition, the Employer excepts to the Hearing Officer's recommendation that challenges be sustained to the ballots of Robert losue and Winthrop Palmer as having supervisory or manageri- al status. Finally, the Employer excepts to the Hearing Officer's recommendation that the challenge to the ballot of Theodore Noss be overruled. The Board has considered the Hearing Officer's report, the Employer's exceptions thereto, and the entire record in this case,3 and hereby adopts the Hearing Officer's findings and recommendations except as modified herein.4 1. There is no merit in the Employer's contention that the direction of election in this case is inconsis- tent with a Board decision, issued after the election herein was conducted, and that therefore the results of this election should be nullified and a second election directed. The Employer argues that the initial direction of election in this case imposed the traditional eligibility standards and, insofar as this applies to adjunct professors, it is inconsistent with the Board's subsequent decision in Manhattan College, 195 NLRB No. 23, wherein it was stated: absence of exceptions thereto, we adopt, pro forma, the Hearing Officer's recommendations that challenges to the ballots of Buckner, Deagle. Glaser, Kushel, Lipka, Anderson, Wing, Bayreuther, Sullivan , and Trevor be overruled and challenges to the ballots of Aberant, Harrison. Plesko, Schulem, Silver, Skelley, Vogel, Wentzel, Briggs, Osakwe, Greenfield, Kessler, Lyon , Marshall, and Samilenko be sustained 5 "Eligible to vote are those in the unit who are employed during the payroll period immediately preceding the date below " 198 NLRB No. 79 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ... we hereby designate part-time faculty members regularly teaching at least I-quarter the normal weekly teaching load for their counter- parts on the full-time faculty, as a regular part- time faculty member eligible to vote in the election. Contrary to the Employer, the earlier Decision and Direction of Election in this case was not concerned with the eligibility of particular adjunct professors, but rather whether adjunct professors generally had a sufficient community of interest with full-time professors to warrant their inclusion in a unit with the latter, or whether they should be excluded from such a unit as a class. Thus the question decided involved the appropriate scope of the unit rather than the type of individual placement issue raised by the instant challenges. As the Board left open the question of whether individual adjunct professors have a sufficient continuing interest to render them eligible to vote, nothing in our direction of election precluded any party from challenging the ballot of those appearing at the polls who possessed no expectancy of future employment or whose teaching load was so slight as to negate the existence of any community of interest between them and full-time professors.6 Accordingly, we are satisfied that the election conducted herein was neither directed nor conducted under conditions requiring a rerun elec- tion. 2. The Employer, in the alternative, contends that the Hearing Officer erred in sustaining challenges to the ballots of 19 adjunct professors who were not on active payroll status during the eligibility period because they did not teach in the spring semester of 1971. It is contended that the Hearing Officer failed to give proper weight to language in the direction of election relating to "temporary laid-off employees" and Board precedent which deems laid-off employ- ees eligible if they have a reasonable expectation of employment in the future. The Hearing Officer, in sustaining the challenges in issue, correctly set forth Board law as requiring that ". . . only those part-time faculty members having a substantial and continuing interest in the wages, hours and working conditions of unit employees be eligible to vote." However, implicit in this standard is the proposition that such an interest would be established in the case of any adjunct professors who, though not teaching in the semester in which the election was conducted, nevertheless possessed a reasonable expectation of future employment. None- theless, the Hearing Officer concluded from the facts of this case, that no clear pattern of continuing employment emerges applicable to adjuncts collec- tively. In this connection, he reasoned that adjuncts who had taught consecutively in part or all the past academic years, as well as in the fall of 1970 semester, but not in the spring of 1971, would not qualify under the eligibility standard set forth in the Board's direction of election. We believe that the Hearing Officer failed to give appropriate weight to the history of employment in past academic years of adjuncts in determining whether they had a continu- ing employment interest warranting their inclusion in the unit. In our opinion a regular pattern of continuing employment in past academic years can be indicative of the type of expectation of future employment necessary to establish a continuing interest in the unit. Adjunct professors not teaching during the semester in which the election is conducted may have an even greater interest than their counterparts who happen, by chance, to be on payroll status at that particular time. We agree with the employer that efforts should be made to prevent an arbitrary distinction which enfranchises adjuncts who hap- pened to be teaching at the time of the election while disenfranchising all others. From the record it appears that adjuncts are often reemployed annually contingent upon the availabili- ty of work. They sign contracts in advance which, while giving no assurance of employment, do accord the adjuncts individual faculty status and as such some expectation of employment during the contract term. Accordingly, receipt of an adjunct contract coupled with evidence of employment during the contract term would appear to be relevant factors in assessing eligibility. In our opinion, those who signed such a contract in at least 2 of the 3 consecutive academic years, inclusive of that in which the election is directed, and actually teach 3 or more credit hours in at least one semester in each of 2 such years have a sufficient employment history to establish a reasonable expectancy of reemployment to support eligibility in a Board-conducted election. Under this standard, adjuncts not employed on the election date will be eligible or ineligible depending upon their continuing interest in the unit rather than fortuity. Applying this formula to the challenges in issue, it appears that 16 adjunct professors received and accepted adjunct contracts in 2 or more of the years 1968-69, 1969-70, 1970-71 and taught at least three semester hours in each of the years in which they taught. In view of the above we find that these adjunct faculty members, though not teaching in the 6 At the time of the instant election the parties were under no greater agreement as to the regularity of employment of any individual part-time disability in contesting eligibility then was true in Fordham University, 193 faculty members, such individuals may vote subject to challenge " NLRB No 23, where the Board stated "if the parties cannot reach C. W. POST CENTER 455 spring semester of 1971, have a substantial and continuing interest in the unit and hence were eligible to vote in the election. Accordingly, contrary to the Hearing Officer, we shall overrule the challenges to the ballots of Bethauser, DeTomasi, DiGioia, Hassen, Klein, Busby, Fox, Kunit, Kenney, Moss, O'Malley, Reimer, Schmid, Smith, Seidman, and Tell. Of the remaining challenges, to which the Employer has excepted, we shall sustain the chal- lenge to Charles Poppe as he taught in only the 1968-69 academic year and had no contract for the 1970-71 academic year; we shall sustain the ballot to Frank Farinella, as he did not teach in either the 1968-69 or 1969-70 academic year; and we shall sustain the challenge to the ballot of Michael Tamasulo because the record does not disclose that -he taught in any of the 3 academic years. As the challenges to the ballots of the following individuals have been overruled, we shall direct that their ballots be opened and a revised tally be prepared and served upon the parties, and the appropriate certification be issued: Bethauser, DeTo- masi, DiGioia, Hassen, Kenney, Moss, Klein, Busby, Fox, Kunit, O'Malley, Reimer, Schmid, Seidman, Smith, Tell, Buckner, Deagle, Glaser, Kushel, Lipka, Sullivan, Wing, Noss, Anderson, Bayreuther, and Trevor. DIRECTION It is hereby directed that the Regional Director for Region 29 shall, pursuant to the Rules and Regula- tions of the Board, within 10 days from the date of this Decision, open and count the ballots of William K. Bethauser, James DeTomasi, Guiseppe DiGioia, Samuel Hassen, Francis Kenney, Eugene Moss, John G. Kumt, Edward O'Malley, Stanley M. Reimer, John W. Busby, Alexander A. Schmid, Harold Seidman, Ellen Fox, Lawrence Smith, Steven Tell, Robert Buckner, Susan Deagle, Robert Glaser, Gerald Kushel, Robert Klein, Jerzy Lipka, Nina Sullivan, William L. Wing, Theodore Noss, Robert Anderson, Florence Bayreuther, and John Trevor, prepare and cause to be served on the parties a revised tally of ballots including therein the count of such ballots, and issue the appropriate certification. MEMBER KENNEDY, dissenting in part: I would affirm the Hearing Officer's recommenda- tion that the challenge to the ballots of the adjunct faculty members not teaching at the time of the Direction of Election be sustained. I am opposed to revising eligibility rules after an election has been held. Contrary to my colleagues, I construe the original Direction of Election herein (in which we said employees "eligible to vote are those in the unit who were employed during the payroll period immediately preceding" the issuance of the Board's order) to limit voting eligibility of adjunct professors teaching during the semester in which the election was directed and held. The Hearing Officer is clearly correct, in my judgment, in finding that there is no assurance that adjunct professors who taught in past academic years will return to teach in the future, and adjunct professors when not teaching a course are not temporarily laid-off employees but are, rather, nonseasonal employee contractors be- tween fobs. The adjunct professor's position in the academic community is quite different from that of a full-time faculty member. If we are to include adjunct professors in bargaining units of teachers, I would limit voter eligibility to those teaching at the time the election is directed.