University Of Chicago Library

220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD University of Chicago Library and Robert S. McGee and National Council, Distributive Workers of America; Local 103A, National Council, Distributive Workers of America, ALA, University of Chicago Library Professional Staff Organizing Committee; Local 103B, National Council, Distributive Workers of America, ALA, University of Chicago Library Non-Professional Staff Organizing Committee. Case 13-CA-11447 August 3, 1973 DECISION AND ORDER By MEMBERS FANNING , JENKINS, AND PENELLO On October 20, 1972, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Respondent filed cross- exceptions and a supporting brief, and a statement in answer to the exceptions and brief of General Coun- sel. Parties in Interest filed cross-exceptions and a supporting brief, and an answering brief, to which Respondent filed an answering 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 considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, only to the extent consistent herewith. We agree with the findings of the Administrative Law Judge that Sharon Irvine, Walter Necker, David Green, Stanley Irvine, and Shirley Lyon are supervi- sors within the meaning of the Act. Contrary to the Administrative Law Judge we find that Elsie Calvin, Helen Pitts, Curtis Bochanyin, and Patricia Coats- worth are supervisors within the meaning of the Act. In view of the conduct engaged in by several of these supervisors, we can perceive no basis for dismissing the complaint in its entirety as did the Administrative Law Judge, and we find instead that Respondent vio- lated Section 8(a)(2) of the Act with respect to con- duct engaged in by certain of its supervisors. As noted by the Administrative Law Judge, this case does not involve union animus in the usual sense. Here, following the filing of a charge by an individual, a complaint was issued alleging that nine persons em- ployed by the University Library as supervisors assist- ed the Union in its effort to organize library employees, this conduct being in violation of Section 8(a)(2) of the Act. The Respondent admitted both the supervisory status of all nine persons so named, and the fact that they assisted the labor organization. The National Union 1 and its two locals here named Par- ties in Interest contend that none of the nine employ- ees is a supervisor within the meaning of the Act and further that these employees did not assist the Union. Thus, we are presented with an anomalous situation wherein the General Counsel and Respondent both argue for the finding of violations and the issuance of the appropriate order, whereas the Union contends that Respondent did not violate the Act. On March 15, 1971, University of Chicago Library, Staff Union Local 103, National Council of Distribu- tive Workers, ALA,2 filed a representation petition (Case 13-RC-12404) seeking a unit of library employ- ees including all professional and clerical employees. A hearing was opened and evidence was presented concerning the professional and supervisory status of a number of librarians. The hearing was interrupted and the petition dismissed on May 3, 1971, when the Regional Director determined that there were super- visors supporting the Union. Thereafter, Local 103 was reconstituted into two locals, a Local 103A for professional employees, and Local 103B for the cleri- cal employees. On December 3, 1971, Local 103A filed a representation petition (Case 13-RC-12691) seeking a unit of professional librarians. A lengthy hearing followed and there was extensive testimony relating to the issue of whether certain professional librarians were supervisors within the meaning of the Act. An issue in that proceeding was whether supervi- sors who supervise employees outside the unit should be excluded from a professional unit.3 On April 27, 1972, the unfair labor practice charge in the instant proceeding was filed, and it names as supervisors some of the individuals whose status was in issue at the repres 2ntation hearings. The represen- tation case is being held in abeyance pending the resolution of the instant case. The sole issue presented by the complaint is wheth- er conduct engaged in by certain employees alleged to be supervisors amounted to unlawful assistance to the Union in violation of Section 8(a)(2). The threshold question therefore is whether the individuals involved are indeed supervisors within the meaning of the Act. It is to this question that we first direct our attention. As stated by the Administrative Law Judge, the overall function of the library is divided into depart- ments. Responsible for the efficient running of the departments are various section heads, in most cases subordinate to and responsible to the department National Council, Distributive Workers of America 2 Hereinafter called Union or Local 103 3 The transcripts of the representation hearings have been incorporated into the record in the instant case 205 NLRB No. 44 UNIVERSITY OF CHICAGO LIBRARY heads. Under these professionals are additional pro- fessional librarians, clericals, and students. The pro- fessional librarians are salaried, whereas the clericals and students are hourly paid. The total employee complement consists of approximately 600 employees of whom approximately 100 are professional librari- ans. The supervisory status of each disputed librarian will be considered separately in light of applicable Board precedent.' Sharon Irvine, found by the Administrative Law Judge to be a supervisor, is the circulation reserve librarian, in charge of administering the operations of the circulation reserve department. She is directly in charge of three professional librarians-the assistant circulation librarian, assistant reserve librarian, and the bookstock superintendent. There are approxi- mately 150 people employed in the circulation reserve department reporting to the three assistant librarians directly under Mrs. Irvine. Applicants for employ- ment in the department are usually interviewed by a lower level supervisor or by one of the assistant librar- ians. Mrs. Irvine interviews and makes effective rec- ommendations regarding the hire of her three assistants . Mrs. Irvine has signed job descriptions and performance evaluations and has recommended sa- lary increases. We find that she is a supervisor. Walter Necker, found to be a supervisor by the Administrative Law Judge, is the biomedical librari- an, or department head. There are approximately five clerical employees under him. He has interviewed ap- plicants for employment and his recommnedations were followed. He is the only one who assigns work in the department. He has made effective salary rec- ommendations and performance evaluations and has authority to grant time off. He has also executed a notice of termination form which includes a recom- mendation for an employee to be rehired by the li- brary. We find that Walter Necker is a supervisor. We note that he supervises no professional librarians. David Green, found to be a supervisor by the Ad- ministrative Law Judge, is a department head and education and psychology librarian, and has five or six nonprofessional employees under him. Maxine Reneker, personnel librarian, testified that Green has the authority to hire, and that he effectively recom- mended the hiring of three employees during the year preceding the hearing. His assistant has interviewed 4 See, e g, Claremont University Center, 198 NLRB No 121, Adelphi Uni- versity, 195 NLRB 639 Although we are utilizing applicable representation principles in making our determination of whether the disputed individuals are supervisors, our findings are made only for the purpose of determining whether violations of the Act have occurred The instant proceeding is solely an unfair labor practice matter, and we make no findings regarding the specific unit inclusion or exclusion of any individuals Such issues can be determined only by a representation proceeding 221 applicants in his absence. He has prepared employee performance evaluations, job descriptions for his sub- ordinates, and notice of termination forms. He has the authority to grant time off and schedule vacations, as do all department heads. We find that David Green is a supervisor. He does not supervise any professional librarians. Elsie Colvin, found not to be a supervisor by the Administrative Law Judge, is the head of the serial section of the catalog department. This section in- cludes four other employees, two professionals and two clericals. Colvin alone directs the employees of her section in the performance of their jobs and has changed working schedules. She has authority to grant time off, up to 3 days in duration, and is consult- ed when a longer period is involved. Colvin stated that she had authority to discipline employees, but has not done so because it has not been necessary. The salary review forms are submitted to the personnel office by Viola Gustafson, head of the cataloging department, but Colvin has given evaluations in connnection with these reviews. In this respect, it is noted that the cata- loging department is composed of approximately 40-53 employees, and it is not unreasonable to con- clude that Gustafson relies on Colvin's evaluations, as Colvin is the only person acquainted with the work of the employees in her section.' With respect to the hiring procedure, the Adminis- trative Law Judge credited Colvin's testimony that when applicants for employment are sent to her for an evaluation on whether they are qualified, they have already been approved by Gustafson. Assuming this to be true, Colvin's role in the hiring process is never- theless important because Gustafson testified that she would not consider hiring anyone whom Colvin dis- approved. Finally, we noted that Colvin' s annual sa- lary is higher than the salaries of the other employees in her section, and indeed exceeds the salaries of some of the department heads, found to be supervisors. On the basis of the above, we find that Elsie Colvin is a supervisor within the meaning of the Act. Helen Pitts, found not to be a supervisor by the Administrative Law Judge, is the assistant head cata- loger and head of the social science section of the cataloging department. Her duties are to assist the department head, Gustafson, in the operation of the catalog department and to oversee the operation of the social science section. With respect to the latter role, her capacity is similar to that of Elsie Colvin, discussed supra, and the same considerations are ap- plicable. Pitts is in charge of six persons, three profes- sionals and three clericals. The Administrative Law Judge credited Pitts' testi- mony to the effect that while Gustafson asks her opin- 5 The department is composed of four sections 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ion of applicants and the performance of others, it is Gustafson or others higher up who really make all decisions. This statement does not contradict other testimony that Pitts' recommendations are effective. Gustafson testified that she would not hire a person over the objections of a section head, and also testi- fied that the salary evaluations are a result of conver- sations with the section heads. Furthermore, Reneker testified that the evaluations given by Pitts to Gustaf- son are considered as very strong factors in determin- ing the wage scale. In addition, when Gustafson is absent the other section heads seek advice from Pitts. Accordingly, based on the above factors, and the same factors relied on in determining Elsie Colvin's supervisory status, we find that Helen Pitts is a super- visor within the meaning of the Act. Curtis Bochanyin, found not to be a supervisor by the Administrative Law Judge, is a section head in charge of approximately six clerks. According to his self-prepared job description, he was responsible for supervising the work of the employees and spent most of his time in supervisory and developmental aspects of the job. He testified that he trains new employees, assigns working times, distributes work, oversees the operation, and straightens out any mistakes that are made. He also signs timecards. He interviews appli- cants for part-time employment (20 hours a week or less), and participates in the interviewing process for full-time employees. Although he is not a department head, he makes salary reviews and discusses these evaluations directly with Reneker for the people un- der him. His evaluations are given substantial weight, and he is aware of this. He also has authority to fire an employee for theft or for violating regulations. In view of the above, we find that Bochanyin is a super- visor within the meaning of the Act. He supervises no professional librarians. Stanley Irvine, found to be a supervisor by the Ad- ministrative Law Judge, is the head of technical serv- ices in the law library. He reports directly to the head of the law library. The technical services department is responsible for ordering, cataloging, maintenance of catalogs, maintenance of files, and basically for all procedures required prior to books being placed on the shelf. Mr. Irvine is responsible for approximately 15 employees, 5 of them professional and 10 clerical. There is no question but that Mr. Irvine supervises clericals. This was stipulated to at the representation hearing and is supported by the evidence. The Admin- istrative Law Judge found, however, that the work he does with the professional librarians under him, the responsibility he carries, the consultations he has with them, and the direction he gives them are all purely professional duties. We disagree. The record reveals that Mr. Irvine is asked for his opinion regarding the hiring of professional employees. He initials the time- cards of professionals and has assigned professionals to specific jobs. In addition, he is responsible for pre- paring the annual report for the technical service de- partment. In view of the above, we find that the record supports a finding that Stanley Irvine supervis- es both professional and clerical employees. Patricia Coatsworth, found not to be a supervisor by the Administrative Law Judge, is the documents li- brarian and has approximately three clericals working under her. The Administrative Law Judge apparently based his nonsupervisory finding on his conclusion that she is too low in the organizational chart for her views to be considered effective recommendations. In our opinion, this conclusion is unwarranted. She alone is responsible for the functioning of her depart- ment. When a job vacancy occurred, Coatsworth in- terviewed three employees and recommended one directly to Reneker, and that person was hired. That same classification was also upgraded at the recom- mendation of Coatsworth to Reneker. She has execu- ted at least one salary review form, and she has approved an employee's job description form. She also from time to time assigns work to the employees. In view of the above, we conclude that Patricia Coats- worth is a supervisor within the meaning of the Act. She supervises no professional librarians. Shirley Lyon, found by the Administrative Law Judge to be a supervisor, is a department head and is over four clerical employees. The record establishes that Lyon effectively recommends hiring and salary increases. She alone assigns projects to the employees under her, initials timecards, and estimates staff needs. The Administrative Law Judge credited the personnel librarian's testimony that Lyon's recom- mendations have always been followed. In view of the above, we find that Shirley Lyon is a supervisor within the meaning of the Act. She supervises no professional librarians. The Administrative Law Judge dismissed the com- plaint in its entirety. He stated that the nine employ- ees in issue herein have the right to have the Board decide the question of their supervisory status, and that the issue of the supervisory status of the other librarians still in dispute should properly be the sub- ject of a representation proceeding. While we agree that a representation proceeding is the preferred method of determining supervisory status, we cannot ignore the fact that a charge alleging unlawful domi- nation and interference on the part of the Employer was filed, the General Counsel issued a complaint, and a hearing was held at which the issues were litigat- ed. In these circumstances, we can perceive no justifi- cation for dismissing the complaint without reaching the merits. The employees have the right to be free UNIVERSITY OF CHICAGO LIBRARY from employer interference and assistance in the for- mation of their labor organization. To summarily dis- miss the complaint without considering the nature of the conduct involved does not further the policies of the Act. Both the General Counsel and Respondent unique- ly take the same position that Respondent violated Section 8(a)(1) and (2) of the Act, through the conduct of various supervisors. The Parties in Interest contend that such a finding is unwarranted since it is clear that the interests of the alledged supervisors are adverse to the Respondent, and that the actions taken by the supervisors were not authorized by Respondent. It is well settled that strict principles of agency are not to be applied in determining employer responsi- bility under the Act for union activities of supervisory employees .6 The court of appeals enforcing the Board's Order in the Plumbers case cited International Association of Machinists, Tool and Die Makers Lodge No. 35 v. N. L. R. B., 311 U.S. 72, 80 (1940), where the Supreme Court said: The employer . . . may be held to have assist- ed . . . a union even though the acts of the so- called agents were not expressly authorized or might not be attributable to him on strict applica- tion of the rliles of respondeat superior. We are dealing here not with private rights . . . nor with technical concepts pertinent to an employer's le- gal responsibility to third persons . . . but with a clear legislative policy to free the collective bar- gaining process from all taint of an employer's compulsion, domination, or influence. The "Definitions" section of the Act states: Sec. 2. When used in this Act.- * (2) The term "employer" includes any person acting as an agent of an employer, directly or indirectly... . * (13) In determining whether any person is act- ing as an "agent" of another person so as to make such other person responsible for his acts, the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling. 6 Local 636 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry ofthe United States and Canada, AFL-CIO v N L.R B, 287 F 2d 354 (C.A.D.C., 1961), enfg Detroit Association of Plumbing Contractors, 126 NLRB 1381. 223 Having determined that the individuals in question are indeed supervisors within the meaning of the Act, and that their conduct is attributable to Respondent, it becomes necessary to examine such conduct, which is alleged to have caused Respondent to violate Sec- tion 8(a)(2) of the Act. However, before we undertake an analysis of the specific conduct ad seriatim, some general observations are useful. We have found that Sharon Irvine, Elsie Colvin, Helen Pitts, and Stanley Irvine supervise professional librarians, the class of employees sought to be repre- sented by Local 103A. We have further found that Walter Necker, David Green, Curtis Bochanyin, Pa- tricia Coatsworth, and Shirley Lyon supervise clerical employees, but do not supervise any professional li- brarians. This distinction is important because the conduct engaged in by the latter group which relates only to the professional librarians and Local 103A should not be deemed violative of Section 8(a)(2) of the Act. "The policy of the Act is to insulate employ- ees'jobs from their organizational rights." 7 The possi- bility that the professional librarians would be coerced by the organizational activities of other pro- fessional librarians who also, by the nature of their duties, supervise only employees outside of the unit, is too remote to justify limiting the Section 7 rights of such employees.' Moreover, where an individual's principal duties are of the same nature as that of other unit employees, the exercise of supervisory authority outside the unit sought does not so ally such an em- ployee as to create a conflict of interest. The same considerations do not apply to conduct engaged in by Sharon Irvine, Elsie Colvin, Helen Pitts, and Stanley Irvine. These four individuals su- pervise professional librarians, and the possibility cer- tainly is greater that some of the unit employees would be afraid to oppose views expressed by supervi- sors for fear of antagonizing the people who possess effective control over promotions, raises, and other terms and conditions of their employment. We find no basis for the finding by the Administra- tive Law Judge that ". . . it would strain credulity to view Local 103A and Local 103B as separate `unions,' or the clericals in the Chicago University Library as employees standing entirely apart from the profes- sional librarians, where collective bargaining is con- cerned." The record reveals that the locals are separately chartered and that Local 103A seeks to represent only the professional employees, whereas r Radio Officers' Union of Commercial Telegraphers Union, AFL [A H Bull Steamship Co] v NLRB, 347 U S 17, 40 (1953). 6 "Sec 7 Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all such activities... . 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 103B seeks to represent employees other than professional librarians. In view of the foregoing considerations, we shall now examine the specific conduct alleged to have caused Respondent to violate Section 8(a)(2) of the Act. The Social Activities: Subsequent to the reorganiza- tion of the locals in November 1971, Locals 103A and 103B jointly sponsored two social functions. The first was a "soul food" party held on Janaury 15, 1972, at the home of Helen Pitts. The second function was a "beer blast" held at the home of Patricia Coatsworth. The testimony showed that no union business was discussed at either party. The parties were open to the general library community and not limited to employ- ees in the units sought to be represented by the two locals. In view of the social nature of the functions, the limited union involvement, and the total circum- stances, we find that Respondent did not violate Sec- tion 8(a)(2) because the functions were hosted by Pitts and Coatsworth. Participation by Green, Coatsworth, Bochanyin, and Sharon Irvine in Local 103A's Negotiating Committee: These supervisors along with two employees repre- sented Local 103A at meetings with management rep- resentatives on April 5 and 6, 1972. The subject of the meetings was the inclusion and exclusion of certain employees in the unit sought by the Union. It is clear that an employer violates Section 8(a)(2) when it neg- otiates with a committee that has as a member a su- pervisor.' Respondent contends that no collective bargaining took place, and we note that there were no discussions concerning wages, hours, or other working conditions. However, as urged by the General Counsel, the nego- tiations concerned unit composition, and the matter of who is in the unit may well be crucial to the success of the Union. Negotiation by management with a committee of employees, some of whom do not have the Act's protection, does not create an atmosphere for free and uncoerced bargaining. By allowing the participation of Sharon Irvine, who certainly did not enjoy the protection of the Act, and by negotiating with such a committee, Respondent violated Section 8(a)(2). 10 Participation by Green, Coatsworth, Sharon Irvine, and Stanley Irvine in Picketing: These supervisors par- ticipated in the picketing on April 26, 1972, which was sponsored by Local 103A and aimed at influencing the Respondent to agree to a Board election. We have ' E g Mon River Towing, Inc, 173 NLRB 1452, enfd 421 F 2d I (C A 3, 1969) 10 We find it unnecessary to decide whether the participation of Bocha- nyin, Coatsworth , and Green on the committee also constituted conduct violative of Sec 8(a)(2) heretofore noted that Coatsworth and Green do not supervise any professional librarians. We therefore do not find their participation in the picketing to be vio- lative of the Act. On the other hand, the presence of Sharon Irvine, who is in charge of administering the operations of the circulation reserve department, con- taining approximately 150 employees, and Supervisor Stanley Irvine clearly lends ostensible management support to their activities. That the supervisors did not intend for such a conclusion to be drawn is of little consequence. Their activities may certainly have a coercive effect on those whom they supervise. For these reasons , we find that by the participation of Sharon Irvine and Stanley Irvine in the picketing ac- tivities on April 26, 1972, Respondent violated Sec- tion 8(a)(2). The Actions of Shirley Lyon and Walter Necker as Coeditors of the Librarian Jackdaw: The "Jackdaw" is the publication of Local 103A. As heretofore found, Lyon and Necker supervise no professional librarians sought to be represented by Local 103A. In these circumstances, their conduct as coeditors of the "Jackdaw" did not cause Respondent to violate Sec- tion 8(a)(2). Elsie Colvin as Delegate to the National Convention: On April 19 and 20, 1972, Colvin represented Local 103A at the Union's national convention. As we have heretofore found, Colvin supervises professional li- brarians as well as clerical employees. By her acting as a delegate for Local 103A, Respondent violated Section 8(a)(2))' The Allegation That Patricia Coatsworth Is the "Or- ganizing Chairwoman" for Local 103A: The only evi- dence that Coatsworth serves in this capacity is contained in the newspaper of Local 103B, where Coatsworth is referred to as "organizing committee chairman." Such nonprobative evidence, when con- sidered with Coatsworth's denials and our finding that she does not supervise any professional librari- ans, does not establish that Respondent violated Sec- tion 8(a)(2) by the conduct allegedly attributed to Coatsworth herein. Assistance to Union Counsel: The evidence estab- lishes that during the course of the prior representa- tion hearing, Particia Coatsworth and Sharon Irvine were seated at the Union counsel's table, conferring with him. The record also reveals that Sharon Irvine offered advice to the Union's counsel at the hearing in the instant case. Section 8(a)(2) was not intended to prevent this type of assistance. The supervisory status of Coatsworth and Irvine were in issue at both hearings. The remoteness of any possible coercive ef- fect on the unit employees is far outweighed by the right to consult with counsel concerning a matter 11 The Brescome Distributors Corporation, 179 NLRB 787 UNIVERSITY OF CHICAGO LIBRARY 225 about which Coatsworth and Irvine have such an in- terest. We therefore find that the assistance given to union counsel by Coatsworth and Sharon Irvine did not cause Respondent to violate Section 8(a)(2). CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of the Act. 2. By acquiescing in Sharon Irvine's participation as a member of Local 103A's negotiating committee, Respondent violated Section 8(a)(1) and (2) of the Act. 3. By its supervisors' participation in such union activities as picketing and attending the national con- vention as a delegate, Respondent violated Section 8(a)(1) and (2) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 5. Respondent has not violated the Act insofar as the complaint, as amended, alleges any other viola- tions of the Act not found herein. fering with the formation and administration of the Union. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its Chicago, Illinois, libraries copies of the attached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Direc- tor for Region 13, after being duly signed by the Respondent's representative, shall be posted by the 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 the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not herein found. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirma- tive action. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Uni- versity of Chicago Library, Chicago, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with the formation and administra- tion of Local 103A, National Council, Distributive Workers of America, ALA, University of Chicago Library Professional Staff Organizing Committee, or cl-..tri' siting support to said labor organization, by engaging in negotiations with any committee repre- senting thf, above Union which includes as a member Sharon Irvine or any other supervisor of unit employ- ees. (b) Interfering with the formation and administra- tion of tl e above labor organization or contributing sunn-l thereto by participating through its supervi- sors in such union activities as picketing and attend- ing the national convention as a delegate of Local 103A. (c) I n any like or related manner assisting or inter- 12 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 Pursuant 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 interfere with the formation and administration of Local 103A, National Council, Distributive Workers of America, ALA, Univer- sity of Chicago Library Professional Staff Organ- izing Committee, or contribute support to said labor organization, by engaging in negotiations with any committee representing the above Union which includes as a member Sharon Irvine or any other supervisor of unit employees. WE WILL NOT interfere with the formation and administration of the above labor organization or contribute support thereto by participating through our supervisors in such union activities as picketing and attending the national conven- tion as a delegate of Local 103A. WE WILL NOT in any like or related manner as- sist or interfere with the formation and adminis- tration of the above Union. 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By UNIVERSITY OF CHICAGO LIBRARY (Employer) (Representative) (Title) Ing contributions which, because of limitation by the gran- tor, are not available for use as operating expenses. I find that the Respondent is an employer with the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisons may be directed to the Board's Office, Everett McKinley Dirksen Senate Building, Room 881, 219 South Dearborn Street, Chicago, Illi- nois 60604, Telephone 312-353-7572. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge: A hearing in the above-entitled proceeding was held before me on July 17, 18, and 19, 1972, at Chicago, Illinois, on complaint of the General Counsel against the University of Chicago, herein called the Respondent, or the Employer. The charge was filed on April 27, 1972, by Robert McGee, an individual employed by the University as a librarian, and the com- plaint issued on May 31, 1972. The issue presented is wheth- er, in violation of Section 8(a)(2) of the Act, the University unlawfully supported and assisted a national labor organi- zation and two of its locals through the conduct of a number of its supervisory personnel in their activities nourishing the organizational efforts of these groups. The labor organiza- tions involved called Parties in Interest in the pleadings, are (1) National Council, Distributive Workers of America, herein called the National Union; (2) Local 103A, National Council, Distributive Workers of America, ALA, Universi- ty of Chicago Library Professional Staff Organizing Com- mittee, herein referred to as Local 103A; and (3) Local 103B, National Council, Distributive Workers of America, ALA, University of Chicago Library, nonprofessional staff orgainzing committee, herein called Local 103 B. Briefs were filed after the close of the hearing by the General Counsel, the Respondent and the Union. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT I THE OPERATIONS OF THE RESPONDENT The Respondent is a private, nonprofit educational insti- tution incorporated in the State of Illinois; it operates a university for the education of men and women. During the past calendar year, a representative period, the Respondent had a gross annual revenue in excess of $1 million , exclud- I find that National Council Distributive Workers of America; Local 103A, National Council Distributive Work- ers of America, ALA, University of Chicago Library Profes- sional Staff Organizing Committee; and Local 103B, National Council Distributive Workers of America, ALA, University of Chicago Library Nonprofessional Staff Or- ganizing Committee, are labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issue 1. The immediate proceeding Case 13-CA-11447 This is one of a series of Board proceedings all arising from self-organizational activities by the almost 600 em- ployees working for the library of the University of Chicago. Two other proceedings-both representation cases-have been partially litigated ; others will of necessity follow this one, as will be explained below. This particular case does not involve antiunion animus in the usual sense, conduct by the Respondent-here the Uni- versity itself-intended, or of necessity tending to coerce employees in their statutory right to self-organization and to engage in collective bargaining . Following conventional format the complaint lists nine persons employed in the University library and calls all of them supervisors ; it then alleges that they assisted the Union in an overall effort to organize the large number of employees and to bargain collectively. In its answer the Respondent admits both the supervisory status of all nine persons so named and the fact they assisted the labor organization . The National Union and its two locals here named parties in interest , urge as their principal contention that none of the nine is a supervi- sor within the meaning of the statute . They also contradict the assertion these employees did anything to assist the Union, but, as will appear, this is a tongue-in-cheek argu- ment, for the record shows clearly that some of them, at least, are among the group , others perhaps as yet unnamed, who constitute the moving spirit inspiring the entire organi- zation campaign. All that was really explored at thie, neaili.-, is whether or not the particular nine persons here identified are supervisors under applicable law; on this b:.sic and sole issue the Respondent was aligned in agreement with the General Counsel, both of them pitted against the Union. If the fundamental dispute which separates the University and the Union were nothing more than appears in the se particu- lar pleadings, it would be a simple thing to find a violation of Section 8(a)(2) in very summary fashion. The truth of the matter is that in that event, asi uming a Board finding that the Respondent violated the Act, is- suance of a cease-and-desist order and the posting of the usual notices, the true parties in interest-i.e. conflicting UNIVERSITY OF CHICAGO LIBRARY 227 interests-, the University and the labor organization, would find themselves disputing the same basic question which they in fact litigated only partially at this hearing. How many other employees in the University Library are also supervisors, do not enjoy statutory protection in collec- tive-bargaining procedures, and must also be excluded from any eventual appropriate bargaining units of library em- ployees? Apart from the 9 identified and disputed in this one proceeding, there are perhaps 60 other persons at issue. It is clear, therefore, that the ultimate objective of all Board proceedings-to resolve labor disputes through the peaceful process of government and to encourage the practice and procedure of collective bargaining-is not going to be ac- complished, or appreciably furthered, in this instance. 2. The interrupted representation proceedings The National Union started its activities among all the library employees by setting up its Local 103, University of Chicago Library, and on March 8, 1971, demanded bargain- ing rights of the school for all the library employees, includ- ing professional and clerical employees, both full-time and part-time. It filed a representation proceeding petition (Case 13-RC-12404) for this unit. At the start of the hearing on that petition, on April 7, 1971, the Union altered its unit request and proposed in place of a single overall unit two separate bargaining units, one for professional employees and one for nonprofessionals. The Union officers took the position then that the professional employees should also be polled on whether they wished to be joined together with the nonprofessionals in one unit for the entire library. For 2 days testimony was taken concerning the professional or superviosry status, always disputed by the parties, of a num- ber of librarians. The hearing was interrupted and the peti- tion dismissed on May 3, 1971, because the Regional Director was of the opinion there were supervisors support- ing the Union. In December the Union filed another representation peti- tion (Case 13-RC-12619), calling itself Local 103A, etc. This time it claimed to have demanded recognition on be- half of, and sought an election among, only the professional employees of the library. Apparently by this time the Na- tional Union had established two separate locals, a Local 103A to represent professional employees, and a Local 103B for the nonprofessional or clerical employees. The hearing on this petition began on February 9, 1972, and continued on for 8 hearing days, to April 7. Many librarians testified and the principal issue again was whether the various pro- fessionals were supervisors within the meaning of the Act and therefore to be excluded from any bargaining units. A critical contention of the Union made in that proceeding and repeated here, is that "the 1947 amendments to the National Labor Relations Act did not comprehend the ex- clusion from a professional unit of supervisors who super- vise employees outside the unit." whc-, the parties last met on April 7 pursuant to this second petition they agreed upon a stipulated formula for determining election eligibility, in reality a proposed defini- tion of the word "supervisor" at variance with Section 2(11) of the statute. Because the Regional Director deemed this definition of the statutory word improper, he rejected the agreement of the parties as to who was to vote in any elec- tion. On April 27 the unfair labor practice charge in the instant proceeding was filed; it, and the resulted complaint now under consideration, names as alleged supervisors some of the very individuals whose status was disputed as the representation hearings. By agreement of the parties now, the transcripts of the testimony taken at both the earlier representation proceed- ings were received in evidence in this one. Their purpose was to avoid calling again certain witnesses who had testi- fied there, and it was agreed their earlier testimony would be considered as though the witnesses had appeared in per- son. 3. The questions to be decided Narrowly viewed, the sole question that need be decided here is whether the nine persons named in this complaint are supervisors, in which event the very definite prounion activ- ities of at least some of them taint the Union and require an order commanding the Respondent to take steps to curb such activities hereafter by these or by any other supervi- sors. But the basic argument made by the Union, in its insistence that these nine not be deemed supervisors, cuts across the whole library staff, and is directed to many other librarians, some partially litigated in the representation cases, and still others as yet not even identified.' The con- tention is that the supervisory concept, as spelled out in the statute since 1947 amendments and as implemented in un- ending Board decisions since that time, does not apply to supervisory personnel employed by University, or their ad- junct facilities, such as libraries. The Union's support for this broad assertion is said to appear in recent decisions involving University personnel. For reasons set out below I find this argument unpersuasive. The second immediate question to be answered is wheth- er in fact the supervisors supported the "Union," as alleged in the complaint. Resolution of this question here will also serve to put at rest the pervasive dispute which plagues the University and the Union throughout, be the proceeding at any given moment a representation hearing or a complaint case. 4. The duties of librarians; indicia of supervisor status The overall functioning of the library, occupying as it does nine buildings about the school property, is divided into departments, all under the director, deputy director, and others. In charge of the various departments there are also supervisors, some called section heads, in most instan- ces subordinate to and reporting to the department heads. 1 Study of the transcripts made thus far in all three cases-two representa- tion and one complaint-shows that the Union and University have not even been able to agree as to which jobs are in dispute between them. In the first case, on April 7, 1971, they agreed they would dispute the supervisory status of 36 named persons, a stipulation from which the Union later withdrew in that very case In the second case there appears, at one point, an under- standing that the supervisory status of 14 professionals would be litigated And an exhibit received in evidence in this very proceeding is a formal written notice to librarians and assistants, all called supervisors by the Re- spondent, to attend a supervisory instructional meeting, it lists 71 persons. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of these are salaried , called GSA-general supervisory administration. Beneath them are additional professional librarians, and clericals and typists , full-time and part-time, including students . These are all hourly paid and record their time worked on a biweekly timecard. A number of documents directly revealing of what the nine disputed librarians do were placed in evidence as proof of their supervisory status. Collectively viewed, and consid- ered together with the oral testimony , they show certain duties, or responsibilities , discharged by a great number, but not all, of the librarians . By and large they do reflect the general tenor of professional librarian work at this universi- ty. (1) All department heads and supervisors are consulted concerning the proper functioning of their sections, and from time to time are asked for written appraisals of how efficiently the library is being run and to give their sugges- tions on how the ultimate purpose of their separate depart- ments can be improved . The reports, very detailed, explain how the work should be distributed , what type of employ- ees, professional or not, should be used for one specified duty or another, what skills should be required of the vari- ous classifications of employees, and even how much they might be paid in the various categories . These are strictly professional consultations, flowing from librarians to their superiors, translating into practice the expertise for which the librarians are trained (2) There are indications in this record that the manageri- al hierarchy of the total library is rearranged from time to time, seemingly to keep pace with the developing changes and improvements in the science of librarianism. How fre- quently this occurs may be a question, but at least once during the past year every single job, professional and non- professional, was reevaluated-a librarywide position eval- uation review . Each employee professional and clerical, was given a comprehensive questionnaire to fill out; it describes precisely the skill and training required , the duties per- formed , the responsibilities included in the position, and other such details, An attached last sheet, following four pages filled out entirely by the incumbent of the position, is entitled "supervisory comment"; on this the department heads or lower supervisor , however the case may be, states his agreement with the employee's statement of how the incumbent views the job content. These are virtually very complete job descriptions. (3) The amount of work allocated to each section is con- ceived in terms of hours of work to be performed weekly, rather than in the number of dollars to be spent or number of employees to be used . All supervisors are asked, for bud- get estimate reasons, to state their opinion as to how many hours should be allocated to their section ; this too is a professional opinion on how best to "serve the public" in the use of the library. As part of his analysis , the supervisor also makes initial recommendations as to how the permissi- ble number of hours should be used, whether to use fewer employees, each working a greater number of hours weekly, or more employees , each working fewer hours weekly. The beginning suggestions are, of course, then evaluated by higher authorities, before any action is taken ; an inevitable result of this system is that on occasions, at least, employees already at work will be reduced in force, or have their hours reduced, or additional employees will be hired. (4) Hiring of nonprofessionals, and even some profes- sionals, often starts with a request from the immediate su- pervisors to fill actual or expected vacancies. Applicants are sought by the office of the personnel librarian, with prefer- ence in full-time jobs to persons who are already university employees. It is also an integral part of the hiring procedure for applicants to be sent to the immediate supervisor, high or low, for initial interview. The supervisor's recommenda- tion, good or bad, are then funneled up to the department head, or to the personnel librarian, as the case may be, for final action. (5) There is an established salary review system at fixed intervals of employment, 6 months after initial hiring and every 12 months thereafter. The review starts with a salary review form filled out by the supervisor, in which he ex- presses an opinion of the performance of the employee and recommends a raise, if any in his opinion is deserved, within the permissible percentage range-high, low, or somewhere in between. This form, too, funnels upwards and eventually to personnel, after being approved by the higher supervisor, perhaps a department head, if any. (6) Whenever an employee leaves the library the supervi- sor fills out a notice of termination of service form. Here the supervisor states a "performance rating" in one word- excellent, good, fair, or poor-and states his opinion wheth- er the employee should be deemed eligible for further rehire. (7) Supervisors are authorized to request termination of transfer of any employee under them, and there are a num- ber of exhibits showing the practice by some of the supervis- ers here involved. (8) All hourly employees themselves write on biweekly timecards the number of hours worked each day. The cards must be signed or initialed by the supervisors to check for accuracy. It is their responsibility to be sure the reported hours have in fact been worked and the paying office relies upon these reports for accuracy before paying. B. General Considerations Each side of the dispute in this case-the University and the Union-argues too broadly in support of its opposing contention. The Union would virtually remove librarians as a class from the scope of Section 2(11) of the statute, which precisely defines the supervisors who are to be excluded from the coverage of the Act, but the Board has already rejected the position. "We have carefully considered the Employer's contention that various attributes of faculty sta- tus require the application of different principles from those applied by the Board in making appropriate unit determina- tions where other types of employees are involved. As we are not persuaded that such principles will prove to be less reliable guides to stable collective bargaining in this field than they have proven to be in others, we shall apply them in this case." Long Island University, 189 NLRB No. 109. The University in turn urges too literal a readng and application of the statutory definition, and this view, also rejected by the Board, suffers from the fact it ignores the distinction between technical direction and supervision, which serves only to effectuate professional competence, and ordinary industrial type supervision which is intended UNIVERSITY OF CHICAGO LIBRARY to, and directly governs pure terms and conditions of em- ployment. It is true the librarians direct the work of others in their sections, discuss and resolve their "problems," and recommend to their own superiors how better to utilize the services of clerks and lower professionals. But the Board, speaking of other professionals, said "a highly trained group of professionals who normally inform other, lesser skilled, employees as to the work to be performed . . . and insure that such work is done" are not therefore to be deemed supervisors within the meaning of the Act. Diversified Health Services, 180 NLRB 461. See also Doctor's Hospital of Modesto, 183 NLRB 950. Although this language was occasioned by unit determinations applicable to profession- al nurses, it is no less pertinent to the special character of professional employment in university life, be it with respect to teachers, or professors, or with respect to librarians. Like college teachers who plan school courses, instruct students, direct research assistants, and generally supervise the functioning of the institution as such, librarians too practice their profession in a very technical sense. In decid- ing, according to their professional expertise, how best to select books, catalogue them, index information, and effi- ciently make all materials available to the "public," they determine the duties of their subordinates, whether lower- echelon professionals or clerks and typists. They "direct" the people below them in order to achieve the ultimate objective of a well-run library. In a real sense, these are not supervisory functions as traditionally envisaged in the in- dustrial world. A more meaningful comparison would be to the skilled journeyman or craftsman who "directs" his help- er, or learner, and who in the process also decides how and when the assistant works. That the journeyman does not supervise his helper in the statutory meaning of the word has long been accepted under Board law. For these reasons I think the fact that some librarians at the University of Chicago make effective recommendations on how to organize their departments or sections, what type of employees to hire for one aspect of the work or another, how many to use here or there, or even what wage scale would be justified for the various subordinate or clerical duties, proves only their professional status, and serves not at all to prove they are supervisors in the statutory sense. And this is equally true of their duty to verify the precise job descriptions of other employees; certainly if they are re- sponsible for recommending what the job contents should be, they must also certify that the employee is in fact doing what is called for. In fact, when the department or section head says the clerk is doing what the clerk says she is doing, the head is performing nothing that can be called superviso- ry in any sense. And while their suggestions of how allocat- ed hours of work can best be used, or distributed, among the available help, may look like power to determine who should be hired, such end result is still only implementation of professional skill, and not truly a classic managerial func- tion. It does not follow from all this, however, that when the librarian, or any professional employee, also possesses and exercises effective power to select who shall be hired to do the assisting, to evaluate the performance of their individual subordinates when it is time to decide whether their pay shall be raised or whether they shall be discharged, to be 229 responsible for their faithful attendance and discharge of duties once assigned, such responsibilities are to be ignored and the statutory definition of the word supervisor swept aside. Therefore, the salary review form, where comprehen- sively filled out by a particular supervisor, and where given effective weight by higher officials, are persuasive indica- tion of supervisory status in the real sense. When the super- visor in question also interviews applicants for jobs and his appraisal has weight in determining whether or not the per- son will be hired, he is exercising a meaningful authority over his subordinates in terms of their economic interest as distinguished from professional concerns? There is another pervasive contention advanced by the Union that must be set at rest now, and it is that if the employees whom the librarians supervise are not to be in- cluded in the same bargaining unit with them, or are repre- sented by another union, such supervisory authority becomes irrelevant to the librarian's right to enjoy collec- tive-bargaining rights through his own unit of professionals, at least where such external authority occupies less than 50 percent of the librarian's time. I find both the reasoning, and the precedent authority urged in support of this position unpersuasive in this case. In the light of the total history of the situation here presented, it would strain credulity to view Local 103A and Local 103B as separate "unions," or the clericals in the Chicago University Library as employees standing entirely apart from the professional librarians, where collective bargaining is concerned. The original orga- nizational activities grouped all into a single bargaining unit, and when, at the start of the first hearing, the Union agreed to separate professionals from nonprofessionals it did so because the statute compelled that position, and it only agreed to the separation with the announced intention that the former should also simultaneously vote on the ques- tion whether they should nevertheless be joined with the clerks. A paper separation of this kind is no more than lip service to the technical requirements of the statute. A fairer appraisal would be that the National Union asked only for the professionals the second time around in order to get its foot in the door, always intending in the end to represent all the library employees. In Adelphi University, 195 NLRB 639, the Board included in a unit of college professors, a director of admissions who made effective recommendations as to the hire of his secre- tary, and a director of studies program whose duties "con- templated" future supervision of certain part-time students. As to the latter professor, the Board said that in no event would his union represent him "with respect to his supervi- sory duties." Implicit in this statement was an assumption that the professor's duties would be identifiably severable- supervisory versus professional. It is this decision upon which the Union relies primarily for its assertion that the librarians here considered may supervise the clerks and typ- ists under them and nevertheless bargain with the Universi- ty through their own union.3 2 See, again, Doctor's Hospital of Modesto, supra, where the Board did exclude certain "head nurses" because of "their authority to effectively rec- ommend pay increases, job transfers, and departmental assignments for both re¢ular and newly hired employees " 7 See also Fordham University, 193 NLRB 134 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Some of the librarians disputed here in fact supervise professionals, as well as clerical employees; this precedent, however it may apply otherwise, therefore cannot serve to remove such supervisory functions from the picture. More important, however, it cannot be said in this case that the librarians supervise the hourly paid employees only "spo- radically," during seasonal periods (see Great Western Sug- ar Co., 137 NLRB 551), or on any part-time basis. This situation is not like that of the professor who supervises his secretary, he is there to look after the students and the research activities; his secretary only takes care of his re- cords and correspondance. But the clerks and typists in the library are there to carry out the very professional activities for which the librarians are hired; their day-to-day work is completely integrated with that of their supervisors-the professional people. The matter is correctly described in the brief of the University: ". . . their (the librarians') whole function in the Library is directly and inextricably related to their supervisory duties; and, in fact, without employees to supervise their functions are, in most cases, nonexistent. Their roles require the direction and direct supervision of many others in the performance of professionally related duties of a year-round basis." This complete integration of work of both groups is virtually conceded even in the Union's brief, which speaks of the total operation of the various sections of the library as work performed by teams. "Together with the professional exercising his professional skill and independent judgment, the helping staff of the professional, whether they be other professionals, suppor- tive clerical staff, students, or any combination of the three, work as a team to accomplish goals which the team itself establishes." Accordingly, the status of each disputed librarian will be considered in the light of these principles and the evidence directly applicable to each of them. 1. Sharon Irvine Sharon Irvine is circulation reserve librarian, annual sa- lary $12,500, in charge of three departments-circulation, reserve and bookstacks. Each of the subdepartments is con- trolled by a professional called a section head-the assistant circulation librarian, the assistant reserve librarian, and the bookstack superintendent. Beneath the assistants to Mrs. Irvine there are lower supervisors; in all she speaks for management over about 150 employees, mostly hourly paid nonprofessionals, whose average hourly pay is $3.25. I find she is a supervisor within the meaning of the Act. The various lower supervisors under Irvine do the initial interviewing of applicants for employment in their re- spective sections, make first evaluations for merit raises, directly look after the work performance of the clerks and typists under their immediate supervision, and in turn for- ward their reports and ideas to the three assistant librarians. She passes judgment on all of these and must approve or reject every one. For the most part Irvine handles matters entire domain through her chief subordi- nates-the three assistant librarians. There is no merit in the Union's argument that because the top librarian exercises her overall responsibilities through professional subordi- nates she ceases being a supervisor at all. The record as a whole supports the statement at the hear- ing by the Coordinator of Public Services that Mrs. Irvine "is responsible for the administrative supervision of the Cir- culation Department." Testifying in defense Mrs. Irvine played down the import of her duties, but the documents received in evidence are more persuasive on their face as to the extent of her authority. For example, on June 27, 1969, she dismissed one employee from her department with a letter reading in part. "I have made this decision because your work schedule has been extremely erratic, because you have not completed the physical examination necessary for full-time employment at the University of Chicago Library and because the general level of your work has not been satisfactory." At the hearing Irvine attempted to destroy the evidentiary weight of this document by saying she had asked the then personnel librarian what to do about a girl who did not "show up a week or two," and was told "why didn't I send her a letter and tell her we were going to replace her with someone else." So far as the clerk knew, Irvine was the boss, and no one disillusioned her. Irvine must initial all sorts of evaluations and recommen- dations, involving both administrative and personnel mat- ters that channel up to her She testified she did this "just to show I had seen them." Mrs. Irvine is too modest; she must be a very competent and highly regarded professional librarian. There are a number of very technical reports pre- pared by her and forwarded to the higher officials, each recommending in fine detail how to improve the overall operation of perhaps 25 percent of the total library. She received ideas from her departmental head, discusses them, accepts some and rejects others. But these are the type of documents which simply prove professional attainment and performance; they stand apart from supervisory power as such. Nevertheless none of the contentions advanced by the Union to reduce her to a supervisory automation is convinc- ing. In only one of the many sections under her supervision there are at times as many as 42 employees. She interviewed all three of the assistant librarians who now work under her and successfully recommended each of them for hire there- after. Among the exhibits received in evidence there are four appraisals of individual work performance-some for pro- fessionals and some for clericals-written by Irvine herself. Her direct recommendations for increasing or decreasing the number of hours to be performed under her supervision total at times 2,500 hours per week. Effective recommenda- tions that control conditions of employment on such a scale cannot be ignored. 2. Walter Necker The evidence with respect to Necker illustrates in practi- cal application some of the areas of general supervisory authority spelled out above. His title is bio-medical librari- an, a department head at $15,000 a year; he supervises five clerks but no professionals. There are two salaried review forms filled out and signed by him, one in 1971 and one in 1972; two clericals he found excellent and recommended the maximum increase in pay; the third he deemed "slow" and recommended only median increase. There are also two notices or termination of service, one dated 1970 and one UNIVERSITY OF CHICAGO LIBRARY 231 1972; in each he evaluated the employee as deserving of rehire. Consistent with her general testimony that the super- visors' initial recommendations for hiring applicants whom they interview are almost always followed, Personnel Li- branan Renecker said Necker "hired" two of his present five helpers. Necker agreed with her, and himself on the witness stand said he "hired" the two. He belittled this by saying only one applicant was sent to him for interview anyway. But then he added that for another vacancy three applicants had been sent, he had interviewed them, and the one he chose in fact got the job. I find Necker is a supervisor within the meaning of the Act. It is important to comment here on the significance of another form document intended by the Respondent as further proof of Necker's supervisory status but which in reality shows no more than exercise of professional respon- sibility. Like many other librarians Necker too from time to time makes detailed recommendations to his superiors as to what type of personnel-in terms of experience and educa- tion-should be used to operate his section correctly, and how many hours of work should be allocated to the various functions. There are three separate "Applications for work study students," with suggestions of what library work they would do, how many weeks or hours they would work, and how much they might be paid. It is precisely for expert proposals of this kind that professional employees are hired. It is in the implementation of such recommendations, as- suming they are accepted, that some clerks are hired and some are not, some clerks work more hours and some less. The end result reflects only eventual fulfillment of a profes- sional technique; it does not convert the librarian into a supervisor as defined in the statute; no more can the expert directions given by a registered nurse, a lawyer, a doctor, or even an academic research professor make supervisors of each and everyone of them and exclude them from the coverage of the Act. If this view be correct, clarification of the Board's position to the parties in this case will help greatly in resolving, with a minimum of litigation, other similar disputes over many librarians whose names have yet to be considered. 3. David Greene Green is a department head, education and psychology librarian, annual salary $ 10,000, and has five or six nonpro- fessional employees under him , who are paid $3 to $3.15 per hour. Among the exhibits relating to this man's work some illustrate the professional responsibilities set out above which are not really indicative of supervisory status in the statutory sense. The very first recommends to the deputy director of the library rearrangement of the personnel in order to achieve greater effectiveness in utilizing the department's collection of books; others are simply job de- scriptions which are by his signature deemed correctly stat- ed. There are also three separate individual salaried review forms in which he recommended raises on the basis of his evaluation of the employees' performance, and two termi- nation notices, on which he also recorded his opinion as to possible rehire. The evidence is clear that in this instance there is no intermediary between the supervisor and the personnel librarian on matters relating to raises; Greene's recommendations go directly to Reneker. Again, Reneker testified Greene during the past year "hired" three of the clerks now working with him. Greene started his testimony by saying he played no role in hiring anybody, he interviewed nobody. As to one in particular he said he was in Europe at the time, and therefore his then assistant, one Forwalter, interviewed the successful appli- cant.' But if the assistant does the interviewing, and, assum- ably, the effective recommending, because the department head is absent, it follows that the superior is clothed with at least as much authority. Before finishing Greene changed his testimony considerably. Now he admitted he did inter- view one of his clerks who then was hired. It then developed he directly and in writing recommended the outright dis- charge of his full-time assistant, the lady Forwalter. Greene first explained this away by saying his recommendation was "ignored." Had he discussed his recommendation with the deputy director of the library? "I don't recall at some length." His final admission was that Forwalter was in fact removed from his immediate supervision and placed else- where in the library because of his desire to get rid of her. I find that David Greene is a supervisor. 4. Elsie Colvin and Helen Pitts Elsie Colvin is a cataloguer, called section head of the serial section of the cataloguing department; Helen Pitts, also a cataloguer, is called assistant head of the social sci- ence section of the same department. Over them is the de- partment head, Viola Gustafson, who is also assisted by two other section heads. Salaried at $11,000, Colvin works with two other professionals and two clericals; paid $12,350, Pitts is in charge of six persons, three professionals and three clericals. The work these two ladies do, and the authority they are shown to exercise over the employees in their re- spective subsections, illustrates that border-line area where the statutory concept of a supervisor, or effective recom- mendation, must have substantive meaning if professional librarian as a class are not to be excluded from the coverage of the Act arbitrarily and without quarter. They are consult- ed by Gustafson and by higher authorities as to how best to run their sections; they discuss professional problems with their own helpers, and their voice carries greater weight because of their higher training and professional experience. And of course in the practice of their expertise they also determine how the clericals must function to achieve the ultimate objection of proper cataloguing. All this does not cease being pure professional practice merely because as part of their responsibilities they also advise about various job contents, educational requirements, and what the neces- sary skills shall or ought to be in the people who work with them in their special sections. Their title-they and many others are called supervisors and heads of this or that- changes nothing of substance. What "supervisory" meeting or meetings they attended were devoted almost entirely to discussing administrative and professional problems, how In one of the earlier representation cases an assistant to Greene, Ruth Murray, testified she interviewed applicants on Greene's behalf while the latter was on vacation. This interview probably involved some other position. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD more efficiently to run the library, than to what could be called control over conditions of employment. Both Colvin and Pitts testified at the representation case hearing on February 23 and 24, 1972, when their alleged supervisory standing was litigated; this was the proceeding which aborted. By the time the University again urged their supervisory status in July, it had made every effort to pull from its records documentary evidence as proof. What it produced falls short of proving the contention. There are three salary review forms completely filled out by Gustaf- son and showing the initials of Helen Pitts under the depart- ment head's signature; what these prove is that Gustafson asked Pitts whether she agreed with the supervisor's evalua- tion of the particular employee. There is one employee's monthly time report signed by Pitts. Another memo shows Pitts reported on the qualifications, after interview, of an applicant for employment (a Mrs. Solie), and, very briefly, on the qualifications and performance of three clericals. These last are essentially her report on the interim growth of the three clerks on the job, the continuing status of their education, and the skill they have developed and practices. A final document said to prove Pitts is a supervisor is a memo from the personnel librarian, to some one else, re- questing approval of a leave of absence for still another employee; it contains the statement that Pitts had also ap- proved the requested leave. There is no reason for not be- lieving Pitts' own testimony that work assignments in her section are determined by the special knowledge and train- ing of the various employees, that when Gustafson is absent she substitutes only with respect to work in her section to discuss professional problems that arise, that she does not sign the weekly timecards of the clericals, that she only signs the monthly reports of the professionals when the depart- ment head is away, and that while Gustafson asks her opin- ion of applicants and the preformance of others, it is Gustafson, and others up higher, who really make all deci- sions. Indeed the record shows that when Gustafson decides what wage increases to recommend, she asks Pitts for a passing opinion, and then passes the recommendation to Reneker, the personnel librarian, who, after adding her own appraisal, passes the matter to still higher authorities before anything is done. If this sort of lower-echelon expression of opinion is to establish supervisory status, the department head could as easily ask the opinion of everybody in the lower section and make each of them a management repre- sentative.5 Whatever Pitts may be asked to do in her job, I do not believe her recommendations can be deemed "effec- tive" in the statutory sense . I find she is not a supervisor within the meaning of the Act, and that she is entitled tojoin or form a labor organization and to engage in collective bargaining. I make the same finding with respect to Colvin. All the 5 Typical of the evidence offered to prove some of the section heads "effec- tively" recommend raises, is Gustafson's testimony at one point involving Pitts' participation in a raise that was once granted THEwrrHE55 No The most recent one that I recall was an employee of Mrs Pitts' section who inquired about an increase and I consulted with Mrs Pitts and found that her work was satisfactory She was progressing well, and so I recommended that she have one HE.RniG OFFICER Did Mrs Pitts recommend that she have ones THE wm Fss Yes In answer to my inquiry she said, "Yes" record documents show as to her is that she once initialed a wage raise under Gustafson's signature, once made a sin- gle-sentence appraisal of the attitude and production of two employees, and twice reported on the level of performance of two clerks. These last two documents are essentially re- ports upon the continuing development of the clerks, their academic progress, and their adaptability for advancing in their positions; they include no recommendation of any kind. She describes herself as a "troubleshooter and secre- tary" of the section, where two professionals and two clen- cals work with her; the work is assigned according to the individual's knowledge of foreign languages. I credit her testimony that when applicants for employment are sent to her to express an opinion on whether they are qualified, they have already been interviewed by Gustafson and found adequate. What really happens when people are hired is well described in Colvin's following testimony: "I want to an- swer your question honestly. I think she [Gustafson] asked me, `What do you think?' I mean that's the typical kind of question that is asked of me when a person has left after being told by me what the nature of the job is and I have not yet said I don't think that person would be a good person because by the time they get to me there is some decision made as to whether the person would or would not fit." Like Pitts, Colvin too may approve a leave of absence up to 3 days. I deem it significant, however, that Pitts, who has been a section head since 1960, was never told she had this limited authority until the fall of 1971. I find Colvin is not a supervisor within the meaning of the Act. 5. Curtis Bochanyin Like Colvin and Pitts, Bochanyin is a section head, as distinguished from a department head; his title is public and technical services section head. His salary is $8,000 and he has five or six clerks helping him. Some of these are full- timers and some part-timers, their pay ranging up to $3 per hour. He testified without contradiction that he only speaks to applicants for employment who ask to work 20 hours a week or less. In January of this year he spoke to a person who desired to work longer and requested Mrs. Schackle- ford, the assistant personnel librarian, that he be hired. The upshot of this was Bochanyin was severely lectured for hav- ing violated university regulations by exceeding his authori- ty in speaking to anyone for employment over 20 hours weekly. Like the other librarians, Bochanyin "supervises" the clerks in the sense that he is responsible to see that the public is adequately served. This again is pure exercise of his professional competence, as appears clearly from his own words: "I train them when they come on. When someone is hired we sit down and talk for long periods of time about what the job is, what they are suppose to do, you know, and I frequently have to follow them around for the first-it depends on the individual how long you follow him around until he knows how the library operates. I have to see that there is someone that can work at all times when the library is supposed to be open, and if no one shows up, then I have to worry, you know, the library has-we are given hours that we are supposed to be open. It is my job to see that-to assign times to all the student staff so that the library can UNIVERSITY OF CHICAGO LIBRARY 233 stay open.... Everyday when I do this training so that they know how the system works or what they are suppose to do, and everyday there are materials that arrive and I have to give it to the people who are supposed to do it and instruct them how . If there is-once they have learned the job, it doesn't take a terrible amount of instructions, you know, and I tell them, you know, what they are supposed to do with this material . Normally, what I do, there are all kinds of places all over in the library, and you just put something there and someone will come along and do some- thing to it . . . that's a continuing regular thing." In the fall of 1971 he was asked to fill out six salary review forms for the clericals in his section ; for five he gave a brief statement of opinion with a suggestion for a particular raise, and for one reported with no comment at all on perfor- mance.6 Reneker, the personnel librarian , explained that these suggestions must then be discussed with Bochanyin's department head, and that when he, the department head, has formulated his opinion of the section head's ideas, there comes another consulation with her , before any decision is reached as to exactly what raise , if any, is to be given.7 I think Bochanyin's contribution to the total discussion is too far down in the scale for his initial recommendation to be deemed an effective expression of opinion . In fact, the memorandum from Bochanyin to Reneker, which accom- panied the salary review forms when he sent them up, shows that he was required to conform with librarywide regula- tions which also govern the merit reviews made periodical- ly; he asked the librarian to guide him in this respect. But this indicates he performs as much a ministerial function as a supervisory one. I find that Bochanyin is not a supervisor within the meaning of the Act 6. Stanley Irvine Stanley Irvine is called head of technical services, and is paid $14,600 a year . He is a section head, under Leon Lid- dell, who is a department head and in charge of the entire law library. Irvine works with about 16 employees, 5 or 6 of them professional cataloguers and the rest clericals. The work he does with the professional librarians under him, the responsibility he carries , the consultations he has with them and the direction he gives them , are all purely professional duties. Each is a specialist in one field or another ; all are highly trained, some having and others progressing towards degrees in law or librarianism . If Irvine's work, since 1967 when he came into the post , were limited to his cooperative effort with these people, I would have to hold he is not a supervisor within the meaning of the Act. He gives expert direction to the work of the section; he verifies the correctness of job descriptions prepared by the cataloguers , he requisitions work allotment for the various 6 A seventh comparable form , placed in evidence en bloc by the Respon- dent, is misleading, for it only duplicates one of the other six The statement at the hearing by the personnel librarian that Bochanyin filled out 10 such forms during the past year is not reliable testimony 7 In a note to the personnel director accompanying the six review forms he was asked to sign , Bochanym wrote that if his suggestions were not accepted he "would like an additional opportunity to speak to you person- ally" Counsel for the University sees evidence of greater authority in this phrase To the contrary , it shows Bochanyin has to beg even to be heard. aspects of the work in his section ; he reports on the "level of performance" of the professionals-detailing their aca- demic progress, increasing skills, and developing capacity to help run the library. As explained above these are strictly professional responsibilities , and stand apart from supervi- sory functions. His role in hiring professionals and in alter- ing their pay is extremely minimal; it is Liddell, the department head, who effectively recommends action on these things. From Irvine's uncontradicted testimony: "They [applicants for employment] talk to the personnel librarian; they talked to Mr. Liddell. Mr. Liddell will usual- ly talk with them for a little while and then he will call me into the office and I will talk to them a little while and I will show them the department and, you know , in a sense my opinion is asked for.... I'm asked,you know, if I think the person will fit in, would be a good cataloguer, and that sort of thing." Had he ever been asked to make salary increase recommendations? "I may have had something to say. I don't understand it, but I probably had some kind of a conversation about Miss . Gecas' salary , but in terms of the others, about their reviews. No I don't have anything to say prior to their salary reviews about how much they are going to be making, or anything like that." In the light of the record testimony in its entirety , includ- ing what was said by many witnesses in all three of the successive proceedings already held, I think the following statement by Irvine very fairly summarizes what really takes place in many areas of the Chicago University Library. "What generally happens in the Law Library sometimes Mr. Liddell directly gives the annual salary to the professional cataloguers . He did that last year, directly spoke to them about their salary. Other times he has done-I presume he's done the negotiating because he has gotten a figure. He has called me into the office . He has told me what my salary would be. He had given me little slips of paper with peoples' names on them and the amount of their salary. I take those-I have in the past taken these slips of paper. I have called a cataloguer into my office. I have given the-Mr. Liddell has instructed me to do it . I have then given them the slip of paper and I have told them, `This is the amount of money that you are getting next year. The merit review has already occurred. This has been decided.' " Irvine's authority over the approximately 10 clericals in his section is another question. His testimony, here report- ed, was given in an earlier representation case on March 9, 1972. The Union stipulated with the University, during cross-examination , that Irvine "supervises clericals." The lawyers were not talking of his title ; they meant supervision in fact. This was, of course, the Union relying upon its reading of the Adelphi University case, supra, that supervi- sion in fact by a professional over clericals outside the unit does not count. The position is untenable. There is collateral evidence that Irvine does supervise the clerks , as shown by three salary review forms, each resulting in an increase in pay, and each signed by him. With this, plus the stipulation, there is no reason for not accepting the latter testimony of the personnel librarian that Irvine discusses matters pertain- ing to the clericals directly with her, and has done so on 10 or 15 occasions . While it is true Irvine's professional compe- tence explains his direction and supervision over the profes- sional cataloguers, it is also true his direct control, and 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supervision over the clerks is as much a part of his job. I find he is a supervisor as defined in the Act. 7. Patricia Coatsworth This lady is called document librarian ; in her section there are 2 and 1/4 other persons-2 clerks working 35 and 40 hours a week, and a part-time doing only 10 hours. Somebody called her a department head, but the title is doubtful, for a timecard received in evidence shows some- one else's signature as department head and Coatsworth's merely added at the bottom . The oral testimony about her is not extensive, but a voluminous set of exhibits was re- ceived, all somehow making reference to her but only a few examined and appraised during the hearing . Careful read- ing of these documents shows , for the most part, that in the seemingly constant reshuffling of activities and personal duties that goes on in this library, again and again she and many others are referred to as supervisors-sometimes di- rectly and sometimes obliquely. Most of this material serves little to establish Coatsworth's supervisory status, as for example, job descriptions, applications for "work study stu- dents," lengthy excerpts from the library's annual report, and suggestions for changing the number of hours of cleri- cal work to be performed in the section or for increased staffing . She is clearly a professional employee and all this proves is she acts as such. For the rest, she has interviewed applicants for employ- ment ; it must be assumed her role in this is no more signifi- cant than that of other supervisors low in the hierarchy scale. Once there were three applicants and the one she thought best ended up being hired . How many other voices higher than Coatsworth's had a say in this the record does not show. And this is equally true of two salary review forms she signed-one in 1971 and one in 1972. If these docu- ments be considered in isolation, out-of-context from the entire record as it were , a certain picture is suggested . I think instead her statement at the hearing that she never hired or discharged anyone is more reliable in the total circumstanc- es. It is a question of whether when her opinion is asked, can her view be deemed an effective recommendation. In so large a library, working with so few persons doing only clerical work, she is too low in the organizational chart, there are too many persons in positions of authority over her, for Coatsworth to be a supervisor in the statutory sense. I find on the total record she is not a supervisor as defined in the Act. 8. Shirley Lyon Lyon is a department head, called bibliographer of Near East and classical antiquities ; her salary is $ 10,800 and she is over four clerical employees , all hourly paid. Apart from the standard documentary forms showing she programs work allotment for her section , requisitions employees as her technical judgment dictates, and makes other profes- sional recommendations , there are the usual salary review forms and termination notices signed by her. In this in- stance it is clear the supervisor , or department head, reports directly to the personnel librarian on all these matters. Her voice is therefore a more effective one in hiring as well as granting merit raises or withholding them. Lyon testified she discussed salary raises with Mrs. Byler; this was the personnel librarian before Reneker was put in charge in August of 1971. Lyon also said she "probably" initiated such discussion , and "may have" reminded the head office of merit raises that were due. As she continued, she remembered one employee after another on whom she passed judgment to the personnel librarian . And among the exhibits there are three regular salary review forms , all dated November of 1971, all signed by Lyon and all evaluating the quality of work and attitude of the employee involved. As it appears she goes directly to Reneker with her recommen- dations concerning raises, I also accept the personnel librarian's testimony that Lyon's recommendations have al- ways been followed. I find that Shirley Lyon is a supervisor within the mean- ing of the Act. C. Section 8(a)(2); Support of the Union As stated at the start of this Decision, if the complaint, the answer, and the general facts be viewed only superficial- ly, and words given substance without regard to their true import in any given situation, there would be no reason for writing this report at all. The General Counsel alleges that supervisors "assisted" the Union, the Respondent admits it all, and that ordinarily would be an end to the matter. But fairness requires that the position of the employees involved by appraised in the cold light of logic for what it really is. They speak through the Union, but it is always as agent of employees that a union speaks, indeed there is no other way for them to talk to the Board at all. The basic principles of the Act, both in substance and procedure , are in point here with extraordinary clarity. Right or wrong, Sharon Irvine does not believe she is a supervisor under the statute, and if she is not she has a right to dispute the contrary assertion of her employer and to have the Labor Board decide the question for her. This is the only effective and lawful avenue available to her if she is to enjoy the procedures of collective bargaining, guaran- teed all employees . The other eight employees, found or not found supervisors after the event , have the same right for the same reason . The right of all nine is not lessened as to each of them because they move together in bringing their just request to the Board, and in a sense they did this in the first representation case, when the hearing was discontinued after only 2 days. Still in the light of the sole dispute between the "parties," they made the same effort a second time by filing the next representation petition . This one took its regular course for 8 hearing days, and then, because someone filed a charge and because the Regional Director agreed with the Respon- dent that the nine were supervisors, again the procedure established for the very purpose of resolving the dispute aborted. And now the cardinal misconduct-support of the Union-is said to be Sharon Irvine's assistance, and that of the other disputed "supervisors," to the lawyer they hired for the very purpose of convincing the Board that they are not supervisors within the meaning of the Act. On this crit- ical point the proof is that they sat with him, fed him the wherewith to prevail , and were his client-consultants at each UNIVERSITY OF CHICAGO LIBRARY of the Board's hearings-two representation cases and one complaint case. They helped form the labor organizations requisite for filing both petitions. It is a play on words for the complaint to say that Mrs. Irvine and Patricia Coatsworth were on the Union's "nego- tiating committee" when, with the Union's lawyer helping them, they attempted to reach agreement with the director of the University Library as to who the supervisors were and to go to an election. If there is anything that has not yet happened between the Respondent and the Union it is col- lective bargaining, or the negotiation of conditions of em- ployment in any form. In helping employers and unions to adjust their differences at the bargaining table instead of by economic struggle, the Board's rule over the years has been to concern itself with matters of substance and not fancy adjective. Can resort to proper Board procedures by any employee seeking to enjoy the statutory privilege of self- organization ever form the basis of an unfair labor practice finding, whether it be one such or nine acting in concert? As it developed, some of them are supervisors, and they were trying to establish collective-bargaining procedures through a labor organization. But could it be this was too mechanis- tic an application of the Board's regulations, which provide that whenever an 8(a)(2) charge is filed, a pending represen- tation proceeding must be suspended until the unfair labor practices alleged are ultimately resolved? There is a like incoherence in the present proceeding when viewed from the position of the Respondent. Dis- agreeing with Sharon Irvine and her friends, the University had an equal right to have the question answered by the constituted authority-the Board. In fact, it filed its own employer petition (Case 13-RM-1012) in the very begin- ning, but that one was withdrawn at the start of the first representation hearing because, in view of the Union's peti- tion, that of the employer was superfluous. All the school ever wanted and all it wants now is for the Board to decide who is and who is not a supervisor. It may even be said that the Respondent acted with commendable restraint. It could have, but it did not discharge Mrs. Irvine; industrial em- ployers without number have, with no adverse result, dis- missed supervisors who insisted in bargaining collectively. Whether this Respondent chose the road of lawfully estab- lished procedures instead because it was uncertain of its position, or because it is tolerant of dissent, is beside the point. The significant fact is it too is entitled to have the Board receive the basic dispute. And perhaps it also has a right to have the Board answer the question without being subjected to charges of illegal conduct because of the activi- ties of the very employees which it tried but was unable to convince. The unfair labor practice charge was filed by an individual, just another librarian, and under no obligation to pursue a logical course. Maybe he does not wish to be represented by a labor organization "supported" by super- visors; maybe he is himself a supervisor and opposed to any union among even the rank-and-file. But whatever his un- spoken purpose, it can as well, and even more quickly, be achieved via the more appropriate route of the representa- 235 tion proceeding. The final anomaly is that the Respondent welcomes the cease-and-desist order, and will be happy to post the stan- dard notices guaranteeing future compliance, i.e., that su- pervisors not hereafter "support" any union.' In this case, the restraining order will really be directed to Sharon Irvine, and her colleagues. Moreover, if the Board's rules and regu- lations are again unrealistically pursued, the injunctive re- straint will be aimed at all other librarians who may conceivably be statutory supervisors, for the cease-and-de- sist order will also tell the University not to permit any other of its supervisors to support any labor organization. The net effect of such a Board order will be to deny completely to all other librarians whose supervisory status may be ques- tionable, and who may think they have a right to self-orga- nization, not to seek vindication of their legal rights through the Board's process. Such a directive would do violence to the basic policy of the Act. The heart issue appears clearest in the Regional Director's dismissal of the first representation petition on May 3, 1971. After 2 days of testimony had been heard, it appeared that there were supervisors among the union ac- tivists; no unfair labor practice charge had been filed. If this procedure was correct, it means that in every representation case where the employer would exclude particular employ- ees from the bargaining unit on the ground that they are supervisors and the evidence indicates they are supervisors and have indeed participated in the organizational cam- paign, the entire proceeding must be terminated. This is neither Board law nor Board practice. Given the opportuni- ty to resolve their entire dispute-librarywide-via the rep- resentation procedure route, the University and the Union will no doubt again offer the Board the testimony already taken in the two representation cases, and add to that what further evidence may be proper to help resolve the question of supervisory status as to the other librarians still in dis- pute. Accordingly I shall recommend dismissal of this com- plaint.' RECOMMENDED ORDER 10 It is hereby recommended that this complaint be, and it hereby is, dismissed 8 A posthearing request by the Union, opposed by the other parties, to place in evidence additional documents intended to prove the University's agreement with the basic allegations of the complaint, is hereby denied. 9 See also Indianapolis Newspapers, Inc, 103 NLRB 1750, where the Board said "In the absence of evidence, as here, that the Respondent encouraged, authorized, or ratified their [the supervisors'] activities or acted in such a manner as to lead employees reasonably to believe that the supervisors were acting for and on behalf of management, we do not believe that their conduct constituted assistance to, or domination of, the Association " 10 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes