The Trustee of the Stevens Institute of Technology

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trustee of the Stevens Institute of Technology and Stevens Chapter, American Association of Uni- versity Professors, Petitioner. Case 22-RC-6347 January 8, 1976 DECISION ON REVIEW AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On July 9, 1975, the Acting Regional Director for Region 22 issued his Supplemental Decision and Or- der in the above-entitled proceeding, resolving a sin- gle objection as well as a number of challenged bal- lots. Among the challenged ballots resolved by the Regional Director was that of Kai E. Thomenius. Thereafter, in accordance with the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed a timely request for re- view of the Regional Director's decision. On September 18, 1975, the National Labor Rela- tions Board by telegraphic order granted the request for review solely with regard to the issues raised con- cerning the challenge to Thomenius' ballot, but re- served ruling on the merits until the issuance of a revised tally of ballots, when it could be ascertained whether Thomenius' ballot was determinative. On September 25, 1975, a revised tally of ballots was issued and served on the parties, showing that of 104 valid ballots cast, 52 were for and 51 against the Petitioner and there was I challenged ballot. There- fore, the challenge to the ballot cast by Thomenius is determinative. 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 entire record in this case with respect to the issues under review, includ- ing the Employer's and Pefftioner's statements of po- sition, and makes the following findings: Kai Thomenius was hired as a visiting instructor for the 1974-75 academic year to replace Professor Cohen who was on sabbatical leave. At the time of hire Thomenius was informed that his appointment was only possible because of Cohen's absence and that he would not be rehired since there were no available faculty positions. At the completion of his first year at Stevens, however, Thomenius was of- fered a reappointment to substitute for Professor Al- exander who was to go on sabbatical leave upon Cohen's return. Thomenius refused this offer and has departed from Stevens. During the aforementioned 1974-75 academic year Thomenius served as a full-time faculty member performing the same research and teaching duties as the regular faculty, receiving compensation compara- ble to new faculty (his salary was based on the tradi- tional one-half of the absent professor's salary), en- joying the same fringe benefits, and working under the same supervision. While not a voting member, Thomenius participated in departmental and faculty meetings. He also unofficially served on a committee to develop a new medical and clinical engineering program. The Regional Director concluded that Thomenius shared a community of interest with reg- ular faculty sufficient to warrant his inclusion within the bargaining unit. The Employer contends that Thomenius served under a 1-year contract with knowledge that reap- pointment was not possible. Thus, the Employer ar- gues that Thomenius was merely a temporary em- ployee with no reasonable expectancy of continued employment and, therefore, should be excluded from the unit. We find merit in the Employer's contention. From the outset of his employment at Stevens, Thomenius was apprised of the limited 1-year dura- tion of his contract. In these circumstances, we find that Thomenius was merely a temporary employee for a specified limited duration and, on the eligibility and election dates, had no reasonable expectancy of further employment.' Therefore, we find that Tho- menius was ineligible to vote, and we sustain the challenge to his ballot .2 CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Stevens Chapter, American Association of University Professors and that, pur- suant to Section 9(a) of the Act, the foregoing labor organization is the exclusive representative of all the employees in the following appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment: i Goddard College, 216 NLRB No 81 (1975). We note, as set forth above, that at some point Thomenius was offered another temporary appointment for the succeeding academic year, but declined. Such an offer however was made after the election herein which was held on May 21, 1975 2 Subsequent to the issuance of the revised tally of ballots the Employer filed a timely objection to conduct affecting the results of the election to wits that the total valid votes cast was 105 and not 104, as determined by the Regional Director following his voiding of a ballot marked solely "Ae- sTArN" across both the "yes" and "no" boxes . In his Second Supplemental Decision the Regional Director overruled this objection . Thereafter, the Employer filed a timely request for review of the Regional Director 's deci- sion Having reviewed the Employer's request for review in light of the record, we deny it, with respect to this objection , as raising no substantial issues warranting review 222 NLRB No. 18 TRUSTEE OF THE STEVENS INSTITUTE 17 All full-time members of the Regular Faculty of the Employer at its Hoboken, New Jersey cam- pus, including professors, associate professors, assistant deans, and regular faculty members presently engaged as visiting faculty members at other institutions of higher learning but exclud- ing adjunct or part-time faculty members on temporary leave from other institutions of high- er learning and all other Special Faculty mem- bers, librarians, lecturers, aerospace faculty members, ROTC faculty members, laboratory technicians, administrative officers, department heads, deans and all other supervisors as defined in the Act and all other employees.