University of San Francisco

12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD University of San Francisco and Associated Law Professors of The University of San Francisco School of Law, Petitioner. Case 20-RC-11356 November 7, 1973 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer John C. Montoya of the National Labor Relations Board. Following the close of the hearing, the Regional Director for Region 20 transferred this case to the Board for decision. Thereafter, the Employer and the Petitioner filed briefs, and the University of San Francisco Chapter of the American Association of University Professors filed an amicus curiae brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this proceeding, the Board finds: 1. The University of San Francisco, herein called the University, is a private nonprofit institution of higher learning founded in 1855, with offices and educational facilities located in the city of San Francisco, California. Its annual revenue from tuitions is in excess of $2 'million. The university concedes that it is subject to the jurisdiction of the Board, and we find that it is an employer engaged in commerce or in an industry affecting commerce within the meaning of the Act, and that it will effectuate the purposes of the Act to assert jurisdic- tion in this proceeding. 2. The labor organization involved claims to represent certain employees of the Employer.' 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of all regular members of the faculty of the University of San Francisco School of Law, herein called the Law School, who teach on a full-time basis and have received tenure or are eligible to receive tenure, but it will, in the alternative, accept the part-time faculty, or adjunct professors, if the Board determines that they are properly includable in the unit. The Employer, on the other hand, contends that the only appropriate unit is one embracing all full-time and part-time faculty members of the entire university community. In addition, the Petitioner would ex- clude, while the Employer would include, the assistant dean of the Law School and the law school librarians. There is no previous bargaining history. In Fordham University,' 193 NLRB 134, and The Catholic University of America, 201 NLRB No. 145, we held' that a bargaining unit limited to the law school faculty was appropriate. The factors which prompted us to reach such a conclusion in those cases are also present in the instant case. Thus, the Law School of the University of San Francisco occupies its own building on campus, commonly known as "Kendrick Hall," which is rarely used by other members of the university community; the Law School seeks to comply with relatively stringent accreditation and professional standards established by the American Bar Association and the Associa- tion of American Law Schools, as well as by various state judiciaries; the law school faculty members perform the vast majority of their professional and administrative responsibilities within the confines of the Law School; the full-time law professors have a higher average salary than the other professors in the university community, due, in major part, to the fact that their salary, of necessity, must be reasonably compatible with that received by lawyers in private law firms and in the service of the Federal Govern- ment; and, to a significant degree, the Law School, under the direction of the dean, operates independ- ently of the general university' community by maintaining its own academic calendar and by establishing faculty committees with jurisdiction over such areas as curriculum content, recruitment, promotion, and tenure of faculty members. Under the foregoing circumstances, we conclude, as in Fordham and Catholic University that (1) the faculty of the University of San Francisco School of Law constitutes an identifiable group of employees whose separate community of interest is "not irrevocably submerged" in the broader community of interest which they share with other faculty members, and (2) the operation of the Law School is "not so highly integrated" with that of the remainder of the University of San Francisco as to compel a finding that only an overall unit would be appropri- i The Employer contends that the Petitioner, the Associated Law Petitioner is to bargain collectively with the Employer on behalf of unit Professors of the University of San Francisco School of Law, is not a labor employees, that the Petitioner meets the definition of "labor organization" organization However, it is clear from the record , including testimony of as set forth in Sec. 2(5) of the Act See The Catholic University of America, the Petitioner's chief executive officer to the effect that the purpose of the 201 NLRB No. 145, In. 4. 207 NLRB No. 15 UNIVERSITY OF SAN FRANCISCO 13 ate. We therefore find that a unit limited to the law faculty of the University of San Francisco School of Law is appropriate for purposes of collective bar- gaining. There remain for consideration issues as to the inclusion or exclusion of the following categories: Part-time faculty: The Petitioner would exclude, while the Employer would include, the part-time faculty members in the Law School, commonly known as "adjunct professors." The record reflects that, unlike the full-time faculty members who sign a contract with the Law School, these adjunct profes- sors are merely given a letter detailing their responsi- bilities. They are generally practicing lawyers and are employed on a semester basis only. The adjunct professors do not receive the fringe benefits accorded the full-time faculty and are not eligible for promo- tion or tenure. While full-time faculty members are paid on a flat annual salary basis, the adjunct professors are paid on the basis of the number of credit hours taught per semester. The adjuncts do not have an office in the Law School, do not vote at law school faculty meetings, and, unlike the full-time professors, do not participate in law school gover- nance. Under these circumstances, we are con- strained to conclude that part-time faculty, or adjunct professors, do not share a community of interest with the full-time faculty, and we shall, therefore, exclude them from the bargaining unit found to be appropriate.2 Assistant Dean: The Petitioner seeks to exclude the assistant dean 3 on the basis that he is a supervisor, and/or the fact that he lacks a community of interest with his faculty colleagues, while the Employer would include him in the unit. The record reflects that the assistant dean enjoys full faculty status, sitting in faculty committees and having full voting privileges. While his primary responsibility lies in the area of admissions and minority programs, he teaches a total of 4 hours per semester. The record also establishes that the assistant dean does not substitute 'for the dean on those occasions when the dean is absent. It is apparent, from the foregoing, that the assistant dean is not a supervisor within the meaning of the Act. In view thereof, and in the light of the fact that he shares a substantial community of interest with the law school faculty, we shall include him in the bargaining unit.4 Law School Librarians: The Petitioner would exclude, while the Employer would include, the law school professional librarians. The record shows that the law school library staff consists of a law librarian, two other professional librarians, three clerical employees, and a number of student aides. The law librarian, Miss Quigley, and the two professional librarians on the staff, have graduate degrees in library science. They are not attorneys, do not have law degrees, and do not teach any law school courses. However, as we said in New York University, librarians: . .. possess a sufficient community of interest to be included in the unit, as a closely allied professional group whose ultimate function, aiding and furthering the educational and schol- arly goals of the University, converge with that of the faculty though pursued through different means and in a different manner. The library is essential to, and fully integrated with, the law school. The relationship of the law librarians to the faculty is of critical importance in the supply and maintenance of this most essential research tool. For these reasons, we have determined that law librarians have a sufficient community of interest with the faculty to be included with them in an appropriate unit, and, accordingly, we shall include the assistant law librarians herein. However, the head librarian supervises the two assistant librarians, who are included herein as unit personnel. Following our decision in New York University to exclude "those professional librarians who supervise other employees in the unit," we shall exclude the head librarian as a supervisor. For the reasons stated above, we find that the following unit is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All full-time members of the faculty at the University of San Francisco School of Law, including the assistant law librarians and assistant dean, but excluding the adjunct professors, head law librarian, and administrative and all other employees, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication-] 2 New York Universuy, 205 NLRB No. IS. Chairman Miller would Include adjunct professors on the basis of his dissent in New York University. a The office of the assistant dean is currently vacant. a The Catholic University of America, supra