Howard University

HOWARD UNIVERSITY Howard University and Allied International Union of Security Guards and Special Police, Petitioner. Case 5-RC-9363 June 7, 1976 DECISION AND DIRECTION OF ELECTION In Howard University, 211 NLRB 247 (1974), a ma- jority of the Board-then Chairman Miller, former Member Kennedy, and Member Jenkins, with Mem- bers Fanning and Penello dissenting-declined to as- sert jurisdiction over Howard University In reliance on the above-mentioned case, the Regional Director dismissed the petition filed herein A request for re- view was then filed by Petitioner, and in Howard University, 221 NLRB 727 (1975), a majority of the Board issued a Ruling on Administrative Action- Chairman Murphy joined Members Fanning and Pe- nello who adhered to their earlier dissent, Member Jenkins dissented-and directed that the jurisdic- tional issue be reconsidered Accordingly, the Board directed that the petition be reinstated, remanded the case to the Regional Director for a hearing, and or- dered the case transferred to the Board for a decision upon conclusion of the hearing Thereafter, on January 5 and 21, 1976, a hearing was held before Hearing Officer H Q Anderson Following the hearing and pursuant to the Board's direction, the above-entitled matter was transferred by the Regional Director for Region 5 to the Nation- al Labor Relations Board for a decision Thereafter, the Petitioner filed a brief The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error The rulings are hereby af- firmed Upon the entire record in this proceeding, includ- ing the brief filed by Petitioner, the Board finds 1 The record reveals that the Employer is a pri- vate self-governing University located in the District of Columbia The University operates under a char- ter granted by the Federal Government in 1867, has gross revenues exceeding $100 million, makes pur- chases exceeding $50,000 from outside of the District of Columbia, and makes sales of books and the like in excess of $50,000 outside of the District of Colum- bia Accordingly, we find that the Employer is en- gaged in interstate commerce within the meaning of the Act I In Howard University, supra, the Board considered i The Employer clearly meets the jurisdictional standards applicable to private colleges and universities as set forth in Sec 103 1 of the Board s Rules and Regulations , Series 8, as amended See also Cornell University, 183 NLRB 329 (1970) 385 essentially the same record and facts as presented herein and declined to assert jurisdiction The major- ity of the Board was of the view that because of the "unique relationship" between Howard University and the Federal Government, the Board should de- cline to assert jurisdiction over that institution In their dissent, Members Fanning and Penello ex- pressed the view that the relationship between How- ard University and the Federal Government was in- sufficient to cause the Board to withhold the assertion of jurisdiction In the instant case, Mem- bers Fanning and Penello have carefully examined the record and are still of the view that jurisdiction should be asserted for the reasons expressed in their earlier dissent Chairman Murphy and Member Walther, who have been appointed to the Board since the issuance of the earlier decision, have now considered the issue and are in full agreement with the views of Members Fanning and Penello 2 As pointed out more fully in the earlier Fanning- Penello dissent,3 Board policy is to assert jurisdiction over private colleges and universities whose opera- tions have a substantial effect on commerce [A]ssertion of jurisdiction is required over those private colleges and universities whose opera- tions have a substantial effect on commerce to insure the orderly, effective, and uniform appli- cation of the national labor policy 4 In Temple University, 194 NLRB 1160 (1972), howev- er, a majority of the Board, acknowledging that the university in that case satisfied the established crite- ria for assertion of the Board's jurisdiction, found a "unique relationship" between the university and the Commonwealth of Pennsylvania and concluded that under the "special circumstances" of that case it would not effectuate the purposes of the Act to assert jurisdiction 5 In the earlier Howard decision, the Board majority, citing Temple as authority, found a "unique relation- ship" between the Federal Government and the Uni- versity and declined to assert jurisdiction The facts, however, reveal that the relationship between How- ard University and the Federal Government differs greatly from the relationship between the Common- 2 Contrary to the suggestion in the dissenting opinion of Member Jenkins, the action of reconsideration after a change in Board composition is not novel See, e g, International Hod Carriers Building and Common Laborers Union of America, Local 840, AFL-CIO (C A Blame Construction Compa- ny) 135 NLRB 1153 (1962) and International Hod Carriers Building and Common Laborers' of America, Local No 41, AFL-CIO (Calumet Contrac tors Association) 133 NLRB 512 (1961) 3 See Howard University, 211 NLRB 247, 248 4 Howard University dissenting opinion, supra at 249, citing Cornell Um versity supra at 334 5 Member Fanning would have asserted jurisdiction in Temple and dis sented in that case He would assert jurisdiction over the Employer for the reasons stated in this opinion and the dissenting opinion in the earlier How and decision 224 NLRB No 44 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wealth of Pennsylvania and Temple University In Temple, the Board found that pursuant to a state statute Temple University had become a quasi-public institution providing low cost higher education to residents of the Commonwealth and had been for- mally designated an "instrumentality" of the Com- monwealth Further, the Commonwealth owned and paid for a significant portion of the building and land composing the university's physical plant, one- third of the board of trustees were appointed by elected officials, and the Commonwealth played a substantial if not controlling part in the university's financial affairs and maintained a concomitant con- trol over its activities In addition, as an "instrumen- tality" of the Commonwealth, Temple was a public employer within Pennsylvania's Public Employees Relations Act In the instant case, the facts reveal that Howard is not a public university or an instrumentality of the Federal Government, but is a private university The University's physical plant is not owned by the Fed- eral Government, and the Federal Government has no control over the appointment of members of the board of trustees Aside from the receipt of some fi- nancial aid and some measure of governmental pol- icing of the expenditure of funds, none of the facts which made Temple's relationship with the Com- monwealth "unique" are present here There is no evidence that Howard has been required to cede its administrative independence to the public entity on which it relies for support, and there is no evidence that it has done so In fact the record reveals that since 1973 the University has been permitted to ar- range and supervise its own construction contracts and is no longer required to go through the General Services Administration for such contracts In addi- tion, the University is free to obtain supplies, goods, and equipment at its own discretion and is only re- quired to comply with General Services Administra- tion bidding procedures if it uses the services of that agency The only real relationship of the Federal Government to the University is limited to the actual budgetary process through which the Government provides approximately 60 percent of the University's income There is, of course, no govern- mental involvement whatsoever with regard to the University's allocation and spending of its private funds With regard to personnel and labor relations, the Federal Government does not and cannot tell the University whom to hire or fire, does not in any way set wages or working conditions, or impose any re- strictions on collective bargaining 6 There are no spe- 6 The University does have a policy of maintaining a comparability in cific restrictions of any sort with regard to the University's personnel and labor policies' In fact, the record reveals that the University has voluntarily recognized a number of labor organizations as collec- tive-bargaining representatives of its employees and in due course has negotiated a number of collective- bargaining agreements There is no indication what- soever that the relationship between the University and the Federal Government has interfered with that collective bargaining or has entailed the involvement of Federal agencies 8 The record in the instant case as in the earlier deci- sion establishes, inter alga, that the University retains its administrative independence, its employees are not public employees,' and it is not specifically re- stricted in any way in regard to its personnel or labor relations policies In short, the relationship between Howard University and the Federal Government does not interfere with the institution's control over its labor relations and does not act to negate the ben- efits of collective bargaining as recognized by the Act 10 In these circumstances, we believe it will effec- tuate the policies of the Act for us to assert jurisdic- tion over the University, and therefore we do so 2 The Petitioner is a labor organization within the meaning of the Act, and in conformance with Sec- tion 9(b)(3) of the Act has sought a unit exclusively of guards, accepts into membership only guards and security employees, and is not affiliated with any other labor organization that admits to membership employees other than guards 3 A question affecting commerce exists concern- ing the representation of employees of the Employer wages and benefits between its nonfaculty employees and similar employees employed by the Federal Government Such a policy is voluntary and is similar to the practice of any private employer that tracks an industry leader in order to remain competitive in the labor market Moreover , an officer of the University testified at the hearing that in a time of financial adversity it is "highly possible" that Howard would depart from its past practice of maintaining comparability with the Government ' A number of employees at Freedmen's Hospital who were formerly Federal employees are, however by statute, entitled to a continuation of certain benefits S In the earlier Howard decision, the majority declined to assert jurisdic- tion in part because the "unique relationship " with the Federal Government would interfere with the collective-bargaining process and would entail the involvement of Federal agencies 9 Since the employees are not public employees, they do not come under a Federal or District of Columbia public employees relations arrangement, statutory or otherwise If the Board withheld its jurisdiction (the Board has assumed plenary jurisdiction over private sector labor relations in the Dis- trict of Columbia), these employees would be in a no-man's land without an avenue of redress, a result manifestly contrary to the thrust of Sec 14(c) of the Act 10 In the earlier Howard University decision, the majority declined to as- sert jurisdiction because in its view the Federal Government 's contribution of a substantial proportion of the University's budget created a "unique relationship " However in Cornell University, we change our policy regard- ing the assertions of jurisdiction of private universities pointing out, inter alia, that increased Federal financial involvement was a significant factor favoring assertion, supra at 332-333 We believe the Cornell approach is correct HOWARD UNIVERSITY within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act 4 In view of the above, we find the following em- ployees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act All security officers, including sergeants, investi- gators, assistant training officers, assistant traf- fic and parking specialists, salaried building monitors, employed by the Employer in Wash- ington, D C , but excluding all office clerical em- ployees, hourly paid building monitors, building monitors paid by grant funds, parking lot moni- tors, chauffeurs, traffic and parking specialists, supervisors as defined in the Act 11 [Direction of Election omitted from publication ] 12 MEMBER JENKINS, dissenting In June 1974, this Board considered and decided the identical issue 13 which is raised before us today, namely, whether it would be appropriate for us to assert jurisdiction over Howard University in view of the special relationship that exists between it and the ii Subsequent to the issuance of the Ruling on Administrative Action, Howard University 221 NLRB 727 (1975), Petitioner and the University entered into an agreement for consent election Because of the earlier How and decision declining to assert jurisdiction over the University, the Board refused to approve the consent agreement and directed that a hearing be held At the hearing, Petitioner amended the petition to conform to the stipulated unit contained in the agreement for consent election and also entered evidence as to the appropriateness of that unit The University, though properly served with notice of the hearing, did not appear or pro- duce any evidence It filed no brief with the Board following the close of the hearing and did not contest the assertion of jurisdiction or the appropriate ness of the unit iz [Excelsior fn omitted from publication ] i3 Howard University, 211 NLRB 247 (1974) 387 Federal Government In the earlier proceeding, after carefully weighing all the facts and arguments, we found that Howard University has a unique relation- ship with the Federal Government which is not shared by any other university or college in the coun- try Accordingly, in recognition of the Federal Government's deep involvement in and commitment to Howard University, we deemed it inappropriate for us to assert jurisdiction over this Employer Now, less than 2 years later, my colleagues are reaching precisely the opposite conclusion on record facts which they candidly admit are essentially the same as the ones previously before us What has changed is not the relationship between Howard University and the Federal Government, but the composition of the membership of this Board While it is appropriate for the Board to change its views as new circumstances arise, or as it gains in- sight into the ramifications of issues, or even as its membership shifts gradually through the appoint- ment and confirmation process, I think the reversal here does a disservice to the Board and to those af- fected by our decisions The line between those insti- tutions which are wholly or largely intertwined with the Federal or State Government and those which are not is a shadowy one, difficult to draw at best To reverse our course in the absence of additional knowledge or experience in this area can only be un- settling to those who rely on our decisions, and up- setting to actions they may have taken in that reli- ance The result will be to stimulate the testing of numerous issues with each change in membership of the Board, a prospect pleasing to no one I would adhere to our earlier decision and dismiss the petition filed herein