Mercy College

MERCY COLLEGE Mercy College and Mercy College Faculty Council. Case 2-CA-13565 August 11, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND WALTHER Pursuant to an election held on November 7 and 8, 1973, the Mercy College Faculty Council (hereinafter referred to as the Union) was certified as the collective-bargaining representative of the employees in the unit sought on August 30, 1974, and requested bargaining with Mercy College (hereinafter referred to as Respondent or the College) on September 5, 1975. After the College refused to recognize and bargain with the Union, the National Labor Rela- tions Board issued a Decision and Order on July 11, 1975, in the above-entitled proceeding' granting the General Counsel's Motion for Summary Judgment, finding that the College's admitted refusal to bargain with the Union violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, and ordering the College to take appropriate action. Thereafter, on October 15, 1975, the Board applied to the United States Court of Appeals for the Second Circuit for enforcement of its Order. On June 9, 1976, the court denied enforcement and remanded the proceeding to the Board for an evidentiary hearing on the voting eligibility of Neil Judge whose ballot was challenged. On August 10, 1975, the Board accepted the remand and ordered that a hearing be held in accordance therewith. On February 17, 1977, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, General Counsel, Re- spondent, and the Union filed exceptions and supporting briefs. 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 considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge as modified herein and to adopt her recommended Amended Order. In finding that Judge was ineligible to vote because he had an insufficient community of interest with unit employees, the Administrative Law Judge not only considered but also relied on evidence concern- I 219 NLRB 81. 231 NLRB No. 52 ing Judge's postelection work schedule. Since only the period preceding the election held on November 7-8, 1973, is determinative of eligibility, we do not rely on such evidence concerning Judge's postelec- tion work schedule and functions. 2 The record indicated that, during the preelection period of his employment, Judge was primarily involved in administrative activities. Although Judge was hired in 1969 as a part-time teacher of physical education, the College, in 1971, abolished physical education as a requirement for students except those who had entered before this change. During the first semester of the 1973-74 academic year, Judge was teaching three semester hours of physical education either to the few students still required to take physical education or to students who had elected to take the course for credit. Nevertheless, as reflected by the title given him in 1972, "director of athletics," Judge's duties had evolved in accordance with the College's change in emphasis from compulsory physical education to a voluntary program of intramural and intercollegiate athletics. Under the new system, Judge was assigned the responsibility of designing, developing, and implementing an effective intercollegiate and intramural program. As director of athletics, Judge was employed pursuant to a "letter of administrative appointment" and was listed in the 1973-74 catalog as a member of the "faculty of administration," but not as a member of the "faculty of instruction." Unlike individuals employed under "faculty contracts/full time," indivi- duals employed under letters of administrative appointment serve at the pleasure of the president and the board of trustees and are expected to be on campus year round. During this period of his employment, Judge prepared budget requests; ar- ranged for the distribution of tickets to athletic events; represented the College in its relations with various intercollegiate associations; obtained offi- cials for the sporting events; participated in recruit- ing athletes; and was responsible for purchasing all sports equipment. Although the record is unclear as to the exact amount of time Judge spent on unit work, it is apparent that he was primarily engaged in adminis- trative functions. This conclusion is based on the broad authority and discretion accorded Judge in performing the administrative functions enumerated above, as well as the significant amount of time Judge spent in the performance of those functions. Particularly noteworthy is the fact that Judge was solely involved in administrative activities during the summer recess. In short, he not only spent a very significant amount of his time between September 2 See. e.g., Myers Bros., Inc., 218 NLRB 441 (1975). 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and November 1973 on administrative functions or work other than unit work,3 but also the entire months during the summer recess unencumbered by any unit work.4 Accordingly, we find, in agreement with the Administrative Law Judge, that Judge was primarily engaged in administrative duties and had insufficient community of interest with eligible employees. Since administrative personnel were stipulated from the unit, we also agree with the Administrative Law Judge that it is unnecessary to consider whether Judge was also a managerial or supervisory employ- ee.5 In conclusion, Judge was not eligible to vote in the election; the Union failed to receive a majority of the ballots cast; and as the College, therefore, had no obligation to recognize or bargain with the Union, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed amended Order of the Administrative Law Judge and hereby orders that the complaint be dismissed in its entirety. a In this regard, we do not consider the time which Judge spent in connection with refereeing intramural sports as "coaching." Unlike the Administrative Law Judge, we do not regard the "helpful hints" he gave to the losing team as constituting coaching. 4Since it is clear that Judge's performance of his administrative duties occupied a very substantial amount of his time, we find it unnecessary to resolve whether Judge spent a mathematical majority of his hours engaged in administration; nor do we adopt the Administrative Law Judge's utilization of a straight mathematical majority-of-hours standard for making such a finding. I However. since the Respondent excepts contending Judge was also a supervisor, it is worth noting that there is nothing in the record which indicates that Judge had any supervisory responsibility during the eligibility period. (See Fordham University, 214 NLRB 971 (1974).) The only employee Judge could possibly be considered to have supervised then is McMahon, who appears not to have been hired until around the time of the election. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: The charge herein was filed on December 24, 1974, and the complaint issued on February 6, 1975. The complaint alleged, and the answer admitted, that since about September 25, 1974, Respondent Mercy College had refused to honor the August 30, 1974, certification of Mercy College Faculty Council (hereinafter called MCFC) as the exclusive bargaining representative of a unit consisting of "All full-time and regular part-time members of the faculty employed by [Respondent] including department chairmen, assistant library director and reader librarians, [excluding] administrative personnel, the presi- dent, assistants to the president, deans and assistant deans, directors and assistant directors of academic advisors, director of the library, all other employees, guards, watchmen and supervisors as defined in" the National Labor Relations Act, as amended (hereinafter called the Act). On July 11, 1975, the Board issued its Decision and Order (219 NLRB 81) granting the General Counsel's Motion for Summary Judgment. The Board found that Respondent's admitted refusal to bargain with MCFC violated Section 8(aX5) and (1) of the Act notwithstanding Respondent's contention that the certification was invalid on several grounds, including the contention that the determinative ballot in the underlying representation election on November 7-8, 1973, had been cast by an individual, Neil Judge, who was ineligible because he was allegedly not in the bargaining unit. During the representa- tion proceeding, and before Judge's challenged ballot had been counted, Judge had been found eligible without a trial-type hearing. Respondent having refused to comply with the Board's Order, the Board filed a petition to enforce the order with the Court of Appeals for the Second Circuit. On June 9, 1976, that court denied enforcement and issued a decision remanding the case to the Board for an evidentiary hearing on Judge's eligibility to vote in the unit. N.L.R.B. v. Mercy College, 536 F.2d 544. The court's Judgment pursuant to this decision was filed on July 12, 1976. On August 10, 1976, under the docket number in the unfair labor practice case, the Board ordered "that the record in this proceeding be, and it hereby is, reopened and that a hearing be held before an Administrative Law Judge to be designated by the Chief, Division of Judges, for the purpose of taking evidence in accordance with the court's remand. It is further ordered that this proceeding be, and it hereby is, remanded to the Regional Director for Region 2 for the purpose of arranging such hearing, and that the Regional Director be, and he hereby is, authorized to issue notice thereof." This notice of hearing issued on August 17, 1976, under the docket number in the unfair labor practice case. In accordance with the notice of hearing, a hearing was held in New York, New York, on November 8 and 9, 1976, before me, duly designated by the Chief Administrative Law Judge. At the outset of the hearing, Respondent's counsel contended, in substance, that after the issuance of the court's decision, the Board should have vacated the Union's certification and should have reopened the representation proceeding rather than the unfair labor practice proceeding. This contention is renewed in Respon- dent's brief. I hereby adhere to my hearing rejection of this contention and of Respondent's related contention that, because the hearing to be conducted by me was an unfair labor practice hearing rather than a representation case hearing, Respondent did not have any representation-case burden of going forward with evidence in connection with the challenge to Judge's ballot. Allied Metal Hose Company, Inc., 219 NLRB 1134, 1137 (1975), and cases cited. The principal issue litigated before me was Judge's eligibility to vote. Upon the entire record, including the record in the representation proceeding, and my observa- tion of the witnesses who appeared before me, and after due consideration of the briefs filed by Respondent and the MCFC, I make the following: 316 MERCY COLLEGE SUPPLEMENTAL FINDINGS OF FACT A. Evidence Allegedly Bearing on Judge's Eligibility 1. Summary of Judge's employment history, of the development of Respondent's athletics program, and of the employment and evaluation of coaches Respondent operates a private, nonprofit college, which until 1975 operated entirely on the undergraduate level. Until September 1968 it was a religious college, and until September 1969 it admitted women students only. At the time of the November 1976 hearing, Judge had a bachelor's degree and expected in December 1976 to receive a master's degree in recreational education. He first began working for Respondent in September 1969 as a part-time teacher of "physcial education" (see infra).l At this time, Respondent had a relatively small intramural sports program, and its only intercollegiate sport was women's basketball. In 1970, Judge was a part-time teacher (lecturer) in "physical education," and had the title "assistant director of physical education." Around 1970, he began to coach a men's basketball "club" which until 1971 was financed by funds donated by other departments of the College.2 Judge was the first and, until the fall of 1973, the only men's coach employed by Respondent. About 1971, he began to work for Respondent on a full-time basis. In the fall of that year, he agreed on Respondent's behalf to the 1972-73 schedules for men's intercollegiate basketball and baseball and (perhaps) women's intercollegiate basket- ball. By memorandum written in September or October 1971, he asked Treasurer McCarthy for a $3,000 budget for the 1971-72 basketball team. To the extent that this request included the construction of indoor bleachers, Judge's testimony that in 1973-74 he sometimes set up chairs for home basketball games leads me to infer that the request was not granted. The record fails to show the extent to which, if at all, his other requests were granted. About December 1971, Judge submitted to McCarthy a formal, $1,895 initial budget request (see infra) for the 1972-73 women's and men's intercollegiate basketball season. During the 1971-72 academic year, Judge taught "physical education" and coached men's "club" basketball. At some time between 1970 and April 1972, Judge acquired from an undetermined source the title "coordina- tor of athletics." At some time prior to 1970, Margaret J. Melford acquired the title "director of physical education," which she retained until leaving the College at the close of the 1973-74 academic year. Melford reported to the dean for academic affairs, and Judge reported to her so far as his "physical education" courses were concerned. Until about 1971, all students were required to take "physical education" courses but received no credit for them. About 1971, Treasurer McCarthy and others asked the faculty to consider whether to continue this require- ment in view of its cost and its unpopularity among the students. The faculty looked at this proposal through the I My finding as to the date is based on Judge's testimony that he began to work there when men were first admitted, a date fixed as September 1969 by the testimony of College Treasurer Walter McCarthy. Judge was admittedly uncertain about dates. My finding as to the content of his first job is based on the testimony of Judge. who as to this matter appeared to have a better recollection than Dean for Student Services Paul Hughes. curriculum committee. A compromise was evolved under which the physical education requirement was abolished for new students, although it was still imposed on students who entered under the original arrangement. However, at least through the first semester of the 1973-74 academic year, students could elect to take physical education courses for credit. In view of the continued (although limited) physical-education requirement, Director of Physi- cal Education Melford, who reported to the dean of academic affairs, was retained until the end of the 1973-74 academic year. In the meanwhile, under the compromise, as the compulsory physical education program was phased out, the salaries and expenses previously devoted thereto were to be transferred to a voluntary "athletics" program consisting of intramural and intercollegiate games. The athletics program came under the jurisdiction of the dean for student services. Treasurer McCarthy testified that the College adminis- trative council decided to attempt "to introduce an effective-particularly an [intramural] program, and at the same time develop athletic teams which the college could be proud of." Still, according to McCarthy, the College administrative council decided, "within the limited re- sources which the college had," to "develop programs which would involve the greatest participation of students on an [intramural] basis and the Director of Athletics was to identify those programs and to develop them and at the same time he was to associate the college with various athletic associations and develop athletic teams in which the college could participate and thereby bring honor and prestige to the college." Except to the extent indicated infra, there is no evidence that Judge was ever advised of these decisions of the College administrative council. At one point he testified that "really the idea of' intramural games was to encourage the participants to "step up into the varsity level." In the summer of 1972, Judge asked Dean for Student Services Hughes if Judge could have the title "director of athletics," because the work he was beginning to do involving the basketball team was quite different from his original functions of teaching compulsory physical educa- tion courses and starting the club basketball team. Hughes told Judge that he could have the requested title, which Judge retained at all times thereafter and at least until the November 1976 hearing. At the same time, Hughes told Judge that "while we did not know exactly what ... lay down the road, the possibilities for growth were enormous, obviously starting from nothing, and that it would be up to him to design and develop intercollegiate and [intramural] athletic programs." At this time, Respondent had never fielded any intercollegiate teams except women's basket- ball and, perhaps, women's field hockey. Judge was not told anything one way or the other about obtaining coaching help. Judge testified that "right away" he found out, from an unspecified source, that he had the authority to develop intercollegiate teams if student interest was there "because the college was interested in having the 2 Judge described a tennis "club" as a tennis team which played other college teams on an informal basis. Inferentially, a basketball "club" engages in comparable activities. 317 DECISIONS OF NATIONAL LABOR RELATIONS BOARD teams because it was good for the kids, it was good for the college to get kids coming and it was also good publicity if we won." He testified that he got his initial "direction" to develop a team in a particular sport "from the kids ... if I just said we're going to have a basketball team, if I didn't have any kids that [were] interested, it wouldn't do me any good." 3 He also discussed with Director for Student Services Hughes how to go about developing new athletic programs. Every sport whose addition Judge recommended was in fact eventually added, although sometimes (for fiscal reasons) later than he recommended. So far as the record shows, no sports were added without his recommen- dation. During the academic year 1972-73, the College's inter- collegiate teams consisted of men's and women's basketball and men's baseball, as well as a tennis "club" (supra, fn. 2). In addition, the College had a "pick-up" soccer team which may have played one or two games with other colleges, and a few intramural sports, including basketball, softball, touch football, table tennis, and badminton. During this academic year, Judge was Respondent's only hired coach. During this academic year, he agreed on Respondent's behalf to the 1973-74 schedules for the intercollegiate sports which were being played during the current 1972-73 academic year (men's and women's basketball and men's baseball) and also for intercollegiate sports which Respon- dent had not yet played on a full intercollegiate level, namely, soccer and tennis. During the academic year 1973-74, the period during which the election fell, the College fielded intercollegiate soccer and tennis teams, as well as the intercollegiate teams in the sports played in 1972-73. About October 1973, Judge told Hughes, the director for student services, that Judge wanted to hire John McMahon, a student in his senior year, to coach women's basketball. Hughes replied that it was up to Judge, although Hughes did not think it was a good idea to hire a student coach. Thereafter, Judge hired McMahon. 4 Judge testified that, when he decided to hire McMahon, the amount of money available was no part of the consideration. Because Treasurer McCarthy was originally not sure whether to pay McMahon, Judge instructed McCarthy, by memorandum dated December 18, 1973, to pay McMahon the lump sum of $500 as salary for serving as coach for women's basketball. This sum was paid. Hughes testified that Judge "recommended" McMa- hon's salary, but that Hughes did not know to whom this recommendation was made. McCarthy denied knowing anything about McMahon's hire. McCarthy further testi- fied that salaries must be approved by the College president. The record otherwise fails to show to whom Judge made his recommendation about McMahon's salary, and contains no evidence about how much Judge recom- mended. During the 14-week practice and playing season, Judge watched women's basketball practice once a week 3 Although Judge regarded intramural touch football as causing excessive injunes, his budget requests for the period 1972-75 included touch football. 4 My findings as to the circumstances of McMahon's hire are based on Judge's testimony. Hughes testified on direct examination that Judge advised him that Judge had already hired McMahon, and that Hughes and Judge thereafter discussed McMahon's merits. However, on cross-examina- tion he testified, "I do not recall a single occasion on which Mr. Judge for 15 or 20 minutes. He also attended part of each of the six home games. He gave McMahon advice, if McMahon requested it, about such matters as the quality of offense or defense, or if Judge saw something he disagreed with, such as what Judge regarded as undue stress on winning and unnecessary harshness toward and yelling at the players. Judge testified that he "spent a lot of time with" McMahon, but he "just didn't know how to handle" the players. In the academic year 1973-74, Judge and McMa- hon were Respondent's only paid coaches. Judge handled all intramural sports and coached all intercollegiate sports except women's and men's tennis and women's basketball. In the academic year 1973-74, unpaid tennis-coaching duties were performed by Dean for Student Services Hughes, admissions department employee Hitz, and faculty members Lindsay and Ronald Rebhuhn. Rebhuhn, who was included in the voting unit, teaches primarily American literature and American history, and is also a teaching tennis professional. During this 1973-74 period, he asked Hughes to be compensated for his tennis coaching by either a salary or a decreased teaching load. Rebhuhn was taken on as a paid coed tennis coach for the academic year 1974-75. Hughes testified that he did not hire Rebhuhn, did not decide to pay him rather than give him a decreased teaching load, and did not decide how much he would be paid. Hughes also testified that Judge hired Rebhuhn as a coach, but Hughes admitted that he was not present when this was done. Judge could not remember how Rebhuhn's coaching services were obtained, expressed uncertainty about when he became a salaried coach, was not asked whether Judge participated in arranging for Rebhuhn's compensation, and testified that Rebhuhn had been "a fabulous coach for me." A 1974-75 budget revision request prepared by Judge in March 1974 and submitted to the College president contains a $400 entry as salary for "Tennis Coach (Men and Women)." 5 The record fails to show how much Rebhuhn was in fact paid in the academic year 1974-75. I infer that Rebhuhn was taken on as a compensated coach through the tacit agreement of Hughes and Judge, and that neither participated in the negotiations for the form of his compensation for the academic year 1974-75. I find the record insufficient to show how much weight, if any, was given to Judge's recommendation in determining how much to pay Rebhuhn. In May 1975, Judge recommended Rebhuhn for a tennis coach's position for the academic year 1975-1976. Rebhuhn received that job. There is no direct evidence about how much, if any, supervision Judge exercised over Rebhuhn's coaching activity. On the basis of Rebhuhn's experience as a professional tennis coach, MCFC contends that Judge must have exercised virtually none. However, Judge's May 1975 evaluation of Rebhuhn states, inter alia, "I believe that the year 1974-1975 was a turning point for Mr. Rebhuhn.... I believe Ron had some self-imposed retained a coach . .. .without having consulted me about that individual, talked about it with me." Because Judge's version seems more probable than Hughes' initial version, because on cross-examination Hughes largely corroborated Judge, and for demeanor reasons, I credit Judge. 5 Judge mistakenly included this entry in a request which was supposed to include only nonsalary items. However, it was transmitted to the College president. 318 MERCY COLLEGE pressure on himself this year, with regard to winning. After winning the first match Ron loosened up and I believe started to enjoy his team even more than before." I infer that in the academic year 1973-74, Judge did keep an eye on Rebhuhn's coaching activities. In 1974, after discussing the matter with Hughes, Judge hired Angelo Petrone as an assistant men's basketball, baseball, and soccer coach for the academic year 1974-75. Dean for Student Services Hughes testified that, to the best of his knowledge, Petrone's salary was fixed by Judge. However, Treasurer McCarthy, whom I regard as more knowledgeable in this area, testified that salaries must be approved by the College president. The record further shows that, in March 1974, Judge submitted a budget revision request for 1974-75 setting forth a $2,500 salary for "men's soccer coach and assistant coach for baseball and basketball" (see supra, fn. 5). This document was submitted to the College president. The record fails to show how much Petrone was paid. In May 1975, Judge recommended to Hughes that Petrone be employed as a paid basketball and soccer coach for the academic year 1975-76. Petrone was so employed. In March 1976, Judge discharged Petrone without checking with Hughes or, so far as the record shows, anyone else. During the academic years 1975-76 and 1976-77, Judge designed, developed, and added to the curriculum a softball program, a cross-country program, and golf. In March 1975, he asked Hughes for permission to hire Cathi Wasilik as head coach of women's softball, at a $500 salary for the season. After discussions between Hughes and Judge, Judge hired Wasilik, at a salary undisclosed by the record. In May 1975, Judge recommended to Hughes that Wasilik be given the position of women's coach for the academic year 1975-76. This was done. In the spring of 1975, after discussions between Hughes and Judge, Judge hired Nancy Thomas as a coach for women's basketball and/or tennis. Hughes testified that Judge fixed her salary, but McCarthy credibly testified that the College president had to approve all salaries. On a date not shown by the record, and after discussions with Hughes, Judge hired a "Mr. Flowers" as a "coach." The record fails to show whether Petrone, Wasilik, Thomas, or Flowers would have been eligible to vote in the representation election if they had been working for Respondent at that time. Petrone was not a student. In May 1975, Judge drew up "faculty evaluations" for paid coaches Wasilik, Petrone, and Rebhuhn for the current academic year. There is no evidence that Judge ever previously made such evaluations. As of the Novem- ber 1976 hearing, Judge's duties included such evaluations. Nontenured faculty members, who were on the eligibility list, were subject to periodic observation by department chairmen, who were also on the eligibility list pursuant to an agreement by Respondent's counsel. 6 This determination is made by McCarthy and others whose identity is not clear in the record. There is no reason to suppose that Judge is among them. 2. Judge's preparation of proposed budgets About 30 heads of administrative course centers are required to submit for each academic year a budget request for their respective units the second March previous and a revised budget request the March immediately previous. Before submitting such requests, they normally confer with the administrative council. These proposed budgets may include new programs, if the person who submits them has been asked or regards it as appropriate to add such new programs. These budget requests do not include salaries. Among the individuals required to submit such requests are the 10 department chairmen, who were included in the voting group by agreement of Respondent's counsel, and Judge. Treasurer McCarthy, who receives copies of all the requests, divides them by administrative function and sends the compiled initial requests, and later the revised requests, to the appropriate administrator (as to the athletic department, Dean for Student Services Hughes) with a request for his comments. While the direct evidence is unclear, I infer from the probabilities of the situation that these comments are based partly on discussions with the person who prepared the proposed budget, at least if the administrator materially disagrees with it. After receiving the revised requests, McCarthy gives to the appropriate administrator, including the dean of student services, "some sort of budget constraints within which we ask him to hve." If the dean for student services regards the proposed constraint as unreasonable, he can appeal and has appealed to the College president, perhaps after consulting with Judge. Eventually, and after a determination regarding the total amount of money available for the College, 6 the president and the trustees approve a lump-sum budget for each department, and also allocate funds among the separate administrative areas. Inferentially, this allocation is affected by the department heads' proposed budgets and by the administrators' comments thereon. Notwithstanding the lump-sum depart- mental allocations, the administrator has authority to reallocate funds between the departments in his area, provided that the total amount allocated to his area is not materially increased. Such reallocations are partly based on the administrator's discussions with the heads of the affected departments, or at least those whose lump-sum budgets are to be reduced. After an allocation has been made to the athletic department by the president and the board of trustees, Treasurer McCarthy will routinely honor any purchase-order requisition by Judge within the amount allocated, irrespective of the distribution set forth in his proposed budgets. 7 However, Hughes would have power to take action in the event of gross and unexplained variations. Budget requests and revised budget requests for the athletic department were prepared by Judge, and submit- ted to McCarthy and Hughes, for the academic year 1972- 73 and thereafter. In preparing such budget requests, Judge usually relied on his own knowledge and information. The 7 There is no evidence as to what McCarthy would do about expendi- tures for items obviously inappropriate for the functioning of an athletic department. 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD budget requests drawn up by Judge were as follows: Year 1972-73 1973-74 1974-75 1975-76 Original Revised $1,895 $4,512 $8,538 not shown $3,012 8/ $6,783 $11,143 $18,596 During the 1973-74 academic year, for which Judge's initial budget request for the athletic department was $4,512 and his revised budget request about $6,800, the actual budget for that department was between $4,512 and $5,000 and Respondent's total budget was about $1,800,000. Judge's $6,800 revised budget request for the academic year 1973-74, and his $8,500 initial budget request for the academic year 1974-75, both of which documents were submitted about March 1973, contain the entry $4,512 (his initial budget request for 1973-74, submitted about March 1972) under a column headed "Approved Level 1973-1974." Judge's $19,000 revised budget request for the academic year 1975-76, submitted about March 1975, contains a $10,000 entry under a column headed "Approved Level 1975-1976." McCarthy testified that the College had "normally" given Judge more money than requested in his initial budget request, but less than requested in his revised budget request. McCarthy further testified that because the academic years 1974-75 and 1975-76 were "good" years "in terms of enrollment," the College had given some additional increases in the athletic area "because we feel it is an important one . . . in which we want to foster growth." This testimony aside, the record fails to show how much was in fact allocated to the athletic department or its relationship to the College's total budget. Judge also had the authority to submit a budget revision request for a current academic year, should he find that this was called for by some "extraordinary circumstance." In the spring of 1976, Judge submitted such a request to McCarthy, in order to finance participation of the College's very successful women's basketball team in postseason invitational tournaments.9 Because of the size of the amount requested, which is not shown by the record, McCarthy did not have the authority to grant it. He referred the request to the College president, who approved it. 3. Judge's activities related to tickets No admission is charged for a substantial proportion of the College's athletic contests. Whether to charge admis- sion, and how much, is left to Judge. About the 1972-73 academic year, Judge decided to charge $1 per person admission to basketball games. He decided on the $1 8 The initial request assumed that the Student Government Association would budget intramural sports, which were included in the revised request. 9 My finding as to the date is based on Judge's testimony that "Just the past year with the women we have had a couple of overnights in post-season tournaments." amount as an acceptable compromise between obtaining revenue, encouraging high attendance, and charging a price which was fair considering the quality of the play. Judge arranged for the preparation, sale, and receipt of these tickets through student volunteers. Judge also decides who is to receive passes; according to McCarthy, Judge probably gave out more tickets than were sold. Proceeds from the sale of tickets belong to the athletic department, and are not taken into account by Judge's superiors in determining how much to allocate to the department budget. Judge testified that, after a game, he would take the ticket proceeds to put into his budget for "buying oranges and stuff like that." Treasurer McCarthy testified that Judge charged only "nominal admission," that gate receipts were "not a great amount of money," and that until 1976 the College did not try to find out how much they were. 4. Judge's activities in connection with membership in athletic conferences, and arrangements for sports officials and scheduling During the academic year 1972-73, Judge acted for Respondent when it and five other colleges formed the Palisades Athletic Collegiate Conference, which at least at that time had only a men's basketball schedule. Before joining the PACC, Judge discussed the matter with Hughes, but did not receive any instruction or directive from anyone about the matter. Judge represented the College at PACC meetings. From the absence of any reference to PACC dues in Judge's budget requests for the relevant academic years, I infer that no dues were charged (cf. infra, fn. 10). The PACC disbanded after the academic year 1973-74. In September 1973, Judge applied on the College's behalf for membership in the Eastern College Athletic Conference, which granted the application about January 1974. Judge did not ask for permission to join, but before applying for membership he talked about it with Hughes, who said it was probably a good idea. The ECAC dues are $350 a year. About 1976 (infra, fn. 10), Judge applied on the College's behalf for membership in the New York State Association for Women, the Eastern Regional Association (which admits only NYSAW members), and the Eastern Intercollegiate Athletics for Women (an intercollegiate women's athletic conference, which admits only ERA members). Before applying for membership in the EIAW, Judge told Hughes that Judge was going to join, and Hughes said "fine." After learning that ERA and NYSAW membership was a precondition to EIAW membership, Judge so advised Hughes, who (so far as the record shows) voiced no objection to joining the first two associations. The record fails to disclose the dues required (see infra, fn. 10). Also about 1976, the College became a member of the National Collegiate Athletic Association, the Hudson Valley Women's Athletic Conference, and the Metropolitan Collegiate Tennis Association.'o Judge dis- cussed membership in each of these organizations with Hughes before submitting an application therefor. The 'O My finding as to the date that the College joined these organizations is based on Judge's November 1976 testimony that the College joined some of them "within the last three years," and on the fact that Judge's proposed 320 MERCY COLLEGE record fails to show the amount of dues required (see supra, fn. 10). Applications for all these organizations had to be signed by the College president. The College joined all athletic associations recommended by Judge. Judge is the College's sole representative in all these associations except the NCAA, which requires that the representatives include the president. Whenever the College plays a home game as a member of any of these athletic conferences or associations, the College is required to obtain a referee or umpire approved by the "IAABO" or by the College Board Official Association. Judge determines 'whether to obtain such officials through the conference or independently. Judge obtains men's basketball coaches through the ECAC, which the College pays $200 a year therefor. Judge, and Judge alone, selects baseball umpires (at $35 a game) from those who have the requisite organizational approval and do not have an assignment (at $50 a game) directly from the ECAC. McCarthy has never turned down a budget expenditure request submitted by Judge to pay an official. About spring 1975, Judge delegated to the women's softball coach, Wasilik, the authority to obtain officials from the Hudson Valley Board, of which she herself is an official. Judge is responsible for scheduling events in the gymna- sium and the tennis courts, and is responsible for renting baseball diamonds and tennis courts. Diamond rentals totaled $300 for the academic year 1973-74. Also, Judge arranges for scheduling athletic events. At the time of the November 1976 hearing, he was scheduling some events 2 or 3 years in advance. When Judge added new sports to the program, he arranged for competition and scheduling. 5. Judge's activities in connection with purchases, maintenance, and first aid Judge is responsible for purchasing uniforms, balls, and all other sports equipment, for which he shops around, at least partly in retail sporting goods stores, to obtain the lowest prices. After deciding where to buy the desired items, he fills out a requisition for a purchase order and submits it to McCarthy's office, which makes out the purchase order and sends it to the supplier. McCarthy's office has never refused a requisition signed by Judge. Nor would the office ever so refuse, unless the purchase would cause the athletic department to exceed its lump-sum budget. Judge's revised budget request for 1973-74 sought a total of about $1,700 for uniforms, balls, first aid equipment, and "medicold." Judge also inspects equipment to see what is worn out or broken and must be replaced. During the 1973-74 season, he handed out uniforms (which the athletes were expected to wash during the season) at the beginning of the season, collected them at the beginning of the Christmas break, and his wife wash them during the break, handed them out after the break, and at the end of the season sent them to be cleaned and stored. If the gym was dirty, he would write a requisition to the maintenance department to clean it up. He would repair the scoreboard with a screwdriver, and set budgets through the academic year 1975-76, although some recite the ECAC officials' fees, do not refer to the remaining organizations. Judge's proposed budgets for the 1976-77 academic year are in the rejected-exhibit folder. up chairs for home basketball if the maintenance depart- ment was busy. He also administered first aid to injured athletes, before sending them to a doctor. 6. Judge's activities in connection with athletic scholarships Respondent began to give athletic scholarships in 1972, when two were awarded. Judge recruits or passes on the coaches' recruitment recommendations regarding students to receive such scholarships. Athletic scholarships must be approved by McCarthy, the dean of admissions and records, and, perhaps, the director of admissions, none of whom was on the eligibility list. Within the amounts available for athletic scholarships, Judge's recommenda- tions as to who receives such scholarships and the amount to be given are always followed. The amounts granted range from $200 to the entire $1,700 charged for tuition and fees. Students who seek academic scholarships normally apply directly to the admissions office, whose recommendations in this respect are generally followed by the committee on scholarships and financial aid. Dean for Student Services Hughes is a member of this committee. The record fails to show who the other members are. 7. Judge's responsibilities in connection with equal opportunity to women in sports In the spring of 1974, McCarthy told Judge that he was responsible for seeing that the College's program and facilities offered equal opportunity to women in the area of sports, as required by 1972 Federal law and proposed regulations thereunder (86 Stat. 373, 20 U.S.C. Sec. 1681, Title 9 of the Education Act of 1972). 8. Judge's place in the College hierarchy, and his relative pay scale Highest in the College's administrative hierarchy are the College's board of trustees, of which the president is a member. Under the board of trustees are the administrative council, which consists of the seven heads of the College's administrative segments: namely, the dean for student services, the dean for academic affairs, the director of development, the treasurer, the dean for bilingual pro- grams, the executive assistant to the president, and the director of admissions and records. None of these was on the eligibility list." At least since 1970, Judge has never attended a meeting of this council. The next step in the hierarchy is administrative personnel who (unlike Judge) do not report directly to a line officer. Then come persons who (like Judge) do report to a line officer: in Judge's case, the dean for student services. The other individuals who report to the dean for student services, namely, the director of the counseling center, the director of student activities, the placement officer, the school doctor, the school nurse, and the director of chorus, were not on the eligibility list. "1 In so finding, I assume that the exclusion of "administrative personnel · . .directors and assistant directors of academic advisors" encompassed the director of development and the director of admissions and records. 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The faculty generally report, through their department chairman, to the dean for academic affairs. 2 Judge's salary for the 1973-74 academic year was about the same as that of the college relations officer (on the same level as Judge); lower than that of the director of counseling (25 to 30 percent), 13 the director of student activities (5 percent), the financial aid officer (5 to 10 percent), and the assistant director of admissions (10 percent), all of whom were on Judge's level; and lower (10 percent) than that of the placement officer, who was on a level below Judge. In the period between the calendar year beginning July 1, 1972, and the calendar year beginning July 1, 1976, Judge's annual salary increased from $10,000 to $14,750.14 9. Judge's employment contract and his listing in the College catalog Judge is employed by the College pursuant to a "letter on administrative appointment." Such a letter dated June 20, 1973, which is typical of the letters annually received by him between 1972 and 1976, states, "You are requested to serve as Director of Athletics.'5 Effective July 1, 1973, you will be paid at the annual rate of. . . for your administra- tive position." These letters were signed by the College president, but did not call for or bear any signature by Judge. Treasurer McCarthy testified that this type of letter is used for all administrative appointments "on advice of counsel because we had wanted at that time to make clear that the administrative appointments were at the pleasure of the President and the Board of Trustees." Persons employed under a "letter on administrative appointment" are expected to be on campus all year round, they are paid every 2 weeks, and their salaries are developed by the president, the treasurer, and the supervisor of the area and approved by the board of trustees. Treasurer McCarthy testified that in 1973 some persons who held letters on administrative appointment but were not parties to a "Faculty Contract/Full Time" also taught "on a part-time basis." Such individuals, who included McCarthy himself and the director of placement, were none of them on the eligibility list. In that academic year, such persons, as well as Judge, were employed under what McCarthy described as a "part-time teaching contract." This document confirms the individual's appointment as a "part-time lecturer," and specifies the dates when the semester in question begins and ends, the number of semester hours, and the compensation, which is to be paid in three equal installments, the last after final grades had been submitted. This document is to be signed by the "lecturer" as well as the College president. The Regional Director found, in his Supplemental Decision issued on March 7, 1974, that part-time faculty work under a similar document (see Exh. G, p. 14, attached to that Decision). The Regional Director's finding in this respect appears to be unchallenged. McCarthy testified that persons who have "full-time faculty rank" are employed under a printed contract 12 As previously noted, as a lecturer in "physical education" Judge reported to the director of physical education, who reported to the dean for academic affairs. 13 Salaries are based somewhat on length of service, and she had been working for the College since 1961, as compared to Judge's starting date of headed "Faculty Contract/Full Time." This contract, among other things, affords the faculty member employ- ment throughout the academic year specified at the annual salary specified; gives him the option of 26 biweekly or 9 monthly paychecks; calls for deductions therefrom where authorized by the faculty member; specifies a maximum teaching load of 12 semester hours each semester; requires him to perform related duties, including, inter alia, participation in committee work, moderation of student activities, and attendance at faculty meetings; incorporates the provisions of the College's bylaws, statutes, and faculty handbook (none of which is in the record); affords the faculty member certain rights to engage in other work; and affords him the right to a hearing if given a notice of termination for cause. The form contract calls for signa- tures by the president, the faculty member, and (as a witness) the academic dean. McCarthy testified that every "full-time faculty member" signs that contract, including "administrators who are also full-time faculty members." He further testified that the College president has full-time faculty rank and signs that contract, and that this contract was also signed, for the 1973-74 academic year, by the dean for academic affairs, the dean for student services, the assistant dean for academic affairs, the director of the counseling center, and the assistant to the dean for disadvantaged programs. None of the persons specified in the preceding sentence was on the eligibility list. McCarthy further testified that "a person who holds a full-time teaching contract holds faculty rank and is obligated to teach a certain number of courses for a certain amount of money.... Someone who teaches courses which are not scheduled per se, in other words not a specific number of courses but teaches only one or two courses a semester is called a part-time teacher and would not have full time faculty rank." The Regional Director found, in his Supplemental Decision issued on March 7, 1974, "Some of the full-time faculty . . . under contract receive a letter requesting them to serve in an administra- tive position, with a reduction or complete elimination of teaching load" (emphasis in original). A footnote to the Supplemental Decision at this point refers to, inter alia, Exhibits H and I attached thereto. Exhibit H is a letter from the College president dated May 31, 1973, and stating, inter alia, "You are requested to serve as Assistant Academic Dean. Effective July 1, 1973 you will be paid at the annual rate of --- for your administrative position. This will be in addition to your contracted salary as an Associate Professor. Your teaching requirements will be reduced to three semester hours per semester." Exhibit I, also a letter from the College president dated May 31, 1973, states, "You are requested to continue to serve as Director of the Counseling Center. The teaching requirements of 1969. However, the placement officer, who reported to her, was also paid more than Judge, although on a lower level than he. 14 In 1973, Judge also received $735 for his services as a part-time lecturer. 15 The 1972 letter states "Co-ordinator of Athletics.' 322 MERCY COLLEGE your academic contract will be fulfilled in the performance of your administrative position."16 The Regional Direc- tor's findings in this respect appear to be unchallenged. In 1973, the dean for academic affairs, the dean for student services, and the dean for bilingual programs were parties to a "Faculty Contract/Full Time" and, in addition, taught "part time for additional money" pursuant to letters of appointment. None of the persons named in this paragraph was on the eligibility list. Raises under the "Faculty Contract/Full Time" are effective September I. They are developed by the dean for academic affairs in conjunction with the treasurer and president, and are approved by the board of trustees. The faculty are notified about these raises around the Easter preceding their effective date. Persons working under such contracts are not required to be on campus in the summer. The College's catalog for the academic year 1971-72, which catalog was prepared in 1970, includes Judge in its listing of the "faculty of instruction" with the notation that he is a "lecturer." That same catalog elsewhere lists him as the "assistant director of physical education," and lists Margaret J. Melford as the "director of physical educa- tion." The College catalog for the academic year 1973-74, which catalog was prepared in 1972, does not list Judge as a member of the faculty of instruction, but does list him as a member of the faculty of administration, with the title of "director of athletics." This same "faculty of administra- tion" list names Melford as the "director of physical education." Melford was on the eligibility list, did not have a letter on administrative appointment, and reported to the academic dean. This same "faculty of administration" list also includes the 10 department chairmen, all of whom were on the eligibility list, and all of whom are also listed under "faculty of instruction." Also on the "faculty of administration" list are six directors, none of them on the eligibility list, who did not teach during that academic year,17 and seven who did teach. This last group of seven consist of five individuals who were not on the eligibility list '8 and two who were on that list, namely, the director of dramatics and the director of law enforcement education. The former, whose job was to put on a student play, was a "full time" faculty member and, inferentially, was working under a "Faculty Contract/Full Time." The record fails to show whether such a contract was also possessed by the latter, who did not have a letter on administrative appointment. When asked whether the latter was "a Department Chairman," McCarthy replied, "It wasn't quite a department yet, it is now, it is the same thing as the athletic program, sort of a staged thing which developed as the college gets bigger." 10. The division of Judge's working time Judge is required to work on campus 12 months a year.' 9 The record directly shows that July and August are his I6 The Regional Director stated that these letters were "examples" of letters received by full-time faculty members who perform administrative duties. The two recipients of these particular letters were not on the eligibility list. 'liNamely. the directors of admissions and records, development, chorus, buildings and grounds, student activities, and interfaith center. 18 Namely, the director ofcareer counseling (who taught an intersession course). the director of undergraduate advising, the director of the counseling center, McCarthy. and Judge. principal planning time for scheduling matches, accumulat- ing equipment, and arranging for facilities. I infer that the rest of his time during the summer recess is similarly spent. Hughes testified that Judge is expected to work "up to 40 hours" a week, "I'm sure there were weeks that it was more than 40 hours." I infer that, during the summer recess, he worked about 35 hours a week. The first semester of the academic year 1973-74 began on Monday, September 10, 1973, and ended on Sunday, December 23-a total of 16 weeks (see Resp. Exh. 4). Inferentially, the second semester began on Monday, January 17, 1974, and ended on Sunday, May 5.20 More or less continuously between 1970 and the end of 1973, Judge taught courses in "physical education." Students who wished to take this course for credit were required to attend for 3 hours a week. Students who because of their entrance date were required to take noncredit courses in "physical education" could fulfill this requirement by attending I or 2 hours a week. The parties are in dispute about how many hours Judge spent teaching such courses in the fall of 1973, and whether he taught them at all during the following semester. The record contains a document dated September 24, 1973, and signed by Judge and the College president, stating, inter alia: This will confirm your appointment as a part-time lecturer: Semester Fall (9/1 0-1 2/23/73) Year Hours 1973 3 The form "Faculty Contract/Full Time" then in use provided, inter alia, "The teaching schedule of the Faculty Member shall consist of not more than 24 semester hours of lecture, seminar, and/or laboratory work.... A semester hour will be computed in the same manner in which the College computes the number of lecture and/or laboratory hours necessary for a student to obtain a single credit." Hughes testified that the "physical education" course taught by Judge was a "half credit" course, inferentially because, as shown elsewhere in the record, that course consisted solely of gym activities and did not involve any written work. This evidence, standing alone, strongly suggests that in order to teach 3 "semester hours" of physical education, Judge had to teach 6 clock hours. Accordingly, I accept Judge's testimony that he taught 6 clock hours a week that semester. I attribute the confusion in some of his other 1976 testimony as to this 1973 matter 19 This finding is based on the fact that he is paid every 2 weeks throughout the year, without any option of being paid during the academic year only; on the fact that, between 1972 and 1976, he received five consecutive letters of appointment, each effective July 1: and on Hughes' testimony that Judge has certain duties during July and August. 20 This inference assumes that the semesters were of equal length, and takes into account a I-week Easter break. 323 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the fact that the students who were taking physical education as a required, noncredit course were required to attend only I or 2 hours a week, and to the fact that Judge was teaching two different classes, which each met a total of 3 clock hours a week but did not necessarily meet the same number of clock hours the same number of times per week. While Hughes testified that "as an instructor, [Judge] would spend a number of hours [teaching] equal to the number of credits of the courses he was teaching," I infer from the context of his testimony that he was referring to the practice followed in ordinary academic courses which call for written work. Judge testified that he spent 3 to 4 hours a week in preparation for such teaching. Portions of his December 1973 affidavit, read into the record to establish the truth of the matter upon Judge's testimony that he could not recall whether he taught in 1974,21 recite that during the first semester of the 1973-74 academic year he spent I hour a week preparing for such teaching. As to his activities in the fall of 1973, I regard his December 1973 statement as more reliable than his testimony given in November 1976, when his recollection was admittedly uncertain as to his 1973 activities. Respondent's records contain no indication that Judge did any teaching during the second semester of the 1973-74 academic year. When testifying at the November 1976 hearing, Judge could not remember whether he taught "physical education" during that semester. There is no substantial evidence that he thereafter taught "physical education," which, as previously noted, was being phased out as a required course (see supra, fn. 21). Between September 10, 1973 (when the academic year began), and about October 7, Judge worked about 40 hours a week, of which 10 to 12 hours a week were devoted to coaching intercollegiate soccer and (after mid-September) 4 hours a week to handling intramural athletics. Between about October 8 and 21, he worked about 40 hours a week, of which 4 hours a week were devoted to handling intramural athletics. Between October 22 and December 10, 1973, and from December 27, 1973, through February 1974, Judge worked 50 to 55 hours and sometimes 60 hours a week.2 2 During this period (other than the December 10- 27 break), Judge devoted about 4 hours a week to handling intramural sports, 10 to 12 hours a week to coaching in preparation for men's intercollegiate basketball contests, and (after November 21) 4 to 6 hours a week as a coach during the games themselves plus 2 to 3 hours of travel time for each game on the road.23 During the December 10-22 period, he worked (inferentially) 35 hours a week, and the following (Christmas) week, he worked (inferen- tially) 28 hours. He performed no coaching during this period, but did "stuff around the office," such as sched- uling games or ordering equipment. From March 1974 until final examinations beginning about April 28, includ- ing the Easter break, Judge worked 35 to 40 hours a week. During this period, he spent about 4 hours a week handling 21 This 1973 affidavit does not, of course, have probative value as to what Judge's 1974 activities were in fact. However, contrary to Respondent's suggestion at the hearing, I do not think that the affidavit's references to such activity impeach Judge's veracity. Read as a whole and in context, the affidavit's references to 1974 activities appear to be an estimate of what Judge anticipated as of late 1973. intramural athletics, 15 hours a week in intercollegiate baseball coaching and preparation therefor, 6 to 9 hours a week coaching at baseball games, and an undisclosed amount of additional time traveling to and from baseball games.2 4 During the rest of the 1973-74 academic year, Judge spent the rest of his workweek performing the other functions described in earlier portions of this Decision. Judge decided how much time he could spend coaching in view of his other duties, which sports he would coach himself, and which sports he would hire coaches for. McCarthy and Hughes gave testimony suggesting that whether Judge was to coach or not was entirely up to him. I regard this testimony as somewhat misleading. Rather, in view of the 1973-74 expansion of the athletics program as compared to 1972-73, and the fact that Judge was still the only full-time member of the athletics department, I conclude that Judge's superiors expected him to do all the coaching he had time for, and to transfer only the coaching duties he had no time for. B. Postelection Turnover in the Voting Group The eligibility list for the November 7-8, 1973, election contained 85 names. As of November 8, 1976, the first day of the hearing before me, 57 were still in the College's employ. Treasurer McCarthy testified that, as of that date, the College employed 226 employees who fell within the voting group described in the direction of election. Analysis and Conclusions The Regional Director's Supplemental Decision conclud- ed that Judge should be included in the unit because, inter alia, his work during the calendar year was not primarily administrative. The Board denied review of his determina- tion in this respect, and the court of appeals did not disturb the standard used by him. Accordingly, that standard is binding on me. In part I, A, supra, I have summarized how Judge spent his time between July 1, 1973, and June 30, 1974, the period within which the election fell. Attached hereto as an appendix [omitted from publication] is a tabular summary of how Judge's worktime was divided during this period. In preparing this summary, I have classified as "coaching" rather than "administrative" the time which Judge spent in connection with intramural sports, in view of Judge's credible testimony that on request he gave "hints" to the players, that when officiating at such sports he tried to give helpful advice to teams which were being "demolished," and that he regarded the purpose of such sports as encouraging the participants to start competing at the varsity level. This tabulation establishes that, during this period, Judge spent much less than half his worktime coaching and teaching. More specifically, the tabulation shows that, during this 12-month period, Judge worked a total of 2,067 hours, of which 716 hours were spent 22 Judge halted athletic activities before the Christmas break, and resumed them before the end of the break. 23 During one-third of this period, he spent 6 hours per week coaching at games. The rest of the time, he spent 4 hours per week. 24 As the College had no baseball diamond of its own, the team had to travel to almost all of the I I to 13 games played that season. 324 MERCY COLLEGE coaching and teaching. Further, during the academic year 1973-74 within which all this coaching and teaching were performed, Judge worked a total of 1,486 hours. Accord- ingly, Judge spent somewhat less than half his time coaching and teaching even during the academic year. The MCFC does not appear to contend that he performed any nonadministrative work other than coaching and teaching. Accordingly, I find that Judge was not eligible to vote in the election because he had an insufficient community of interest with those who were concededly eligible. In view of this conclusion, I need not and do not pass on Respon- dent's contention that Judge was ineligible because he was allegedly a supervisor and/or a managerial employee, or on its further contention that in any event a new election should be held in view of the turnover in and expansion of the unit, and the time interval which has elapsed, since the election. AMENDED CONCLUSIONS OF LAW The Conclusions of Law numbered 4 through 7 in the Board's original Decision and Order (219 NLRB at 84) are withdrawn, and the following are substituted therefor: 2" 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 amended Order herein shall, as provided in "4. The above-named labor organization is not now, and never has been, validly certified as the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. "5. By refusing on or about September 25, 1976, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive bargaining representative of all the employees in the appropriate unit, Respondent has not engaged in unfair labor practices within the meaning of the Act." Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended amended Order: AMENDED ORDER25 The complaint is dismissed in its entirety. 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. 325