College Of English Language, Los Angeles, Inc.

COLLEGE OF ENGLISH LANGUAGE 1065 College of English Language , Los Angeles, Incorpo- rated and Associated Language Teachers of America, Petitioner. Case 31-RC-5163 12 December 1985 DECISION AND DIRECTION OF ELECTION By CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer Sandra Seldin of the National Labor Relations Board on 21 April 1982. Following the hearing and pursuant to Section 102.67(h) of the National Labor Relations Board Rules and Regulations and by direction of the Re- gional Director for Region 31, this proceeding was transferred to the Board for a determination 'of whether the College of English Language, Los An- geles, Incorporated (CEL or the Employer) is more properly characterized as an educational in- stitution or a retail establishment and, if the latter, what an appropriate unit for the purpose of collec- tive bargaining would be. The Employer and the Petitioner timely filed letters stating their respec- tive positions. By letter dated 17 October 1982, the Petitioner requested a new hearing to present evidence that had come to its attention subsequent to the close of the hearing, including 1 January 1982 changes in the section of the California Education Code pur- suant to which the College of English Language is regulated. On 8 November 1982 the Employer filed a "motion to strike Petitioner's request," and on 21 December 1982 the Petitioner submitted a letter in response. In the interim, on 14 December 1982, the Board issued a Notice to Show Cause why it should not take administrative notice of the changes in the California Education Code which the Petitioner had brought to the Board's attention, and requested the position of the parties on wheth- er such changes would affect the Board's determi- nation of the appropriate discretionary jurisdiction standard to be applied by the Board. The Petitioner and the Employer filed responses with the Board in which neither offered any objection to the Board taking administrative notice of the subject change in state law.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 1 The Petitioner's request for a new hearing is denied as the "new" evidence which the Petitioner indicates an intention to present at such a hearing was previously available to, and could have been discovered by, the Petitioner prior to close of the original hearing. The Board has reviewed the hearing officer's rulings made at the hearing and finds that they are free from prejudicial error. They are affirmed. On the entire record in this proceeding, the Board finds 1. The College of English Language, Los Ange- les, Incorporated2 is engaged in the activity of teaching English as a Second Language to foreign language students with the object of qualifying them for admission into American colleges and uni- versities. CEL operates on 4-week periods and has an average enrollment of 200 students. The parties stipulated that in the past fiscal year the Employ- er's revenues exceeded $500,000, and the Employer purchased and received goods valued in excess of $20,000 directly from outside the State of Califor- nia. The record establishes that CEL derives nearly all of its income from tuition.3 At the time of the hearing, CEL was approved by the Superintendent for Non-degree, Occupation- al Education, Office of Postsecondary Education, California State Department of Education, pursuant to the California Education Code, section 94311(d), to teach "English as a Second Language (Pre-Vo- cation)" and "English as a Second Language-In- tensive Program." Such approval, secured by CEL after several years of review by the State's Depart- ment of Education, indicates, according to section 94319(d), that CEL has met minimum criteria con- cerning the following: the quality and content of courses; the quality, quantity, and safety of physi- cal space; the qualifications and character of in- structors and administrators;4 records regarding the previous education and training of students and their performance while in attendance; and operat- ing procedures and practices. The California Legislature, sometime in 1981, en- acted into law the 1981 Legislative Amendments to the "Private Postsecondary Education Act of 1977," which became effective 1 January 1982. Pursuant to these amendments, the California Edu- cation Code section applicable to English as Second Language schools became section 94315 S Not to, be confused with The College of English Language, also headquartered in Los Angeles and engaged in the activity of teaching English as a second language in several cities throughout the United States The College of English Language, Los Angeles, Incorporated was once a part of The College of English Language, but became a separate corporation in March 1982. 3 Tuition covers the cost of students' books, as well as other expenses. CEL has apparently also received inconsequential sums of money from the limited at-cost sale of books to students, dormitory accommodations, and the less-than-cost sale of T-shirts advertising the Employer. CEL does not operate a bookstore or a translation service 4 All teachers of CEL were required, pursuant to sec. 18328, California Administrative Code, to prepare for the State Department of Education a "Personal Data Form" regarding, inter alia, their academic training, teaching, or administrative experience, and practical experience 277 NLRB No. 105 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entitled "Career-Related Education."5 Section 94315 requires institutions which "offer education which develops or improves an occupational skill, knowledge, or ability"e to file with the State's Su- perintendent of Education information regarding the legal owner's name, the headquarters address, and the name of an agent for the service of process within California. Section 94315, which specifically exempts from its coverage institutions which offer "education with an educational, professional, tech- nical, or vocational objective which is subject to approval or authorization pursuant to section 94311," further provides that: Filing pursuant to [sec. 94315] shall not be in- terpreted to mean, and it shall be unlawful for any institution to expressly or impliedly repre- sent by any mean whatsoever, that the State of California, Superintendent of Public Instruc- tion, the State Board of Education, or the De- partment of Education has made any evalua- tion, recognition, accreditation approval, or endorsement of the institution or the education offered. Both the Petitioner and the Employer acknowledge that effective 21 July 1982, the Employer's approv- al under section 94311(d) was terminated by the State Department of Education and that the Em- ployer was concurrently issued "an acknowledge- ment under Section 94315."4 As of the date of the hearing, after approval by the State Department of Education under section 94311(d), CEL was authorized by the United States Department of Justice, Immigration and Natural- ization Service (INS) to accept and enroll foreign nonimmigrant students. CEL also was required by the State to make contributions to the "Student Tuition Recovery Fund," so that, if it were to go s According to a State of California Department of Education "OPPL information Bulletin number 25 (October 1981)," "career-related" educa- tion programs fall somewhere between "vocational" and "avocational" programs The bulletin states further that "[t]he private education sector supported [sec 94315] to bring a registration to competitive, unregulated education groups Consumer protection groups supported the registration process for consumer information and disclosure purposes. The new law requires such providers to file an annual disclosure of minimal informa- tion to assist consumers who seek redress " I The Private Postsecondary Education Act of 1977, includes the fol- lowing definition (R) "Occupational skill, knowledge, or ability" means any fundamen- tal or advanced competency which increases an individual's employ- ability or potential, effectiveness, or expertise in a vocation or pro- fession, including, but not limited to, self-employment, business, or financial ventures While the Petitioner at one point gave 21 June 1982, as the effective date of the acknowledgment, a document attached as "Exhibit A" to the Employer's response to the Board's Notice to Show Cause, purportedly an official document from the State Department of Education, gives 21 July 1982 as the effective date. The Petitioner's later filed response to the Board's Notice to Show Cause does not contest the authenticity of this document nor the Employer's representation that 21 July 1982 is, in fact, the effective date of the acknowledgment under sec 94315 bankrupt, the State Department of Education could reimburse students for the unused portion of their tuition. 8 The CEL Student Handbook, which serves as CEL's catalog, sets forth qualifications for admis- sion,9 enrollment procedures, tuition refund poli- cies, student regulation, attendance policies, grad- ing and promotion procedures, a calendar of class- es, faculty qualification, 10 and other information relevant to students. The student handbook indi- cates that CEL was granted approval under section 94311(d) of the California Education Code to teach "English as a Second Language (Pre-Vocational)" and "English as a Second Language (Intensive)." Under the category of "Curriculum," the student handbook states "English as a Second Language (Pre-Vocational) will be taught at nine levels. Each level takes 4 weeks to complete."11 The "Inten- sive" program entails 6 hours a day and requires "120 total clock hours" for completion; the regular program entails 4 hours a day and requires "80 total clock hours" for completion. CEL also offers a "Level 110" course studying literary fiction and a "Level 111" course, on "Expository Prose." Addi- tionally, CEL offers a course to prepare students for the "Test of English as Foreign Language (TOEFL)" examination. Typically, students begin at the first level course and, upon acquiring a pass- ing grade of 65 to 100 on either standardized or teacher-prepared tests,12 progress to the next course level. After completing all course levels, students may request a diploma from a secretary working for CEL. There is evidence that five col- leges or universities accept a diploma or letter of English proficiency from CEL as evidence of Eng- lish proficiency. However, most universities require a minimum score 13 on the TOEFL examination as 8 It is now impossible to ascertain whether the conversion from ap- proval under sec 94311(d) to authorization under sec 94315 will affect the Employer's INS authorization and the requirement that it contribute to the State Student Tuition Recovery Fund. As to the former, the record does not indicate that INS authorization is not granted unless a school has been "approved by an appropriate education agency." As to the latter, sec 94315 states that institutions filing pursuant to this section are exempt from all but enumerated provisions of which sec. 94342 con- cerning "Student Tuition Recovery Fund" is not one. 8 The minunum qualification for admission to CEL is 17 years of age and/or a high school diploma. 10 In this regard the student handbook indicates. All of our American teachers are among the most highly skilled in- structors through training and education They are all university graduates with specialized training to teach English Teachers' quali- fications range from four years of University English studies, Califor- nia Teaching Certficates, English as a Second Language teaching Certificates, and a minimum of five years of Enghgh teaching experi- ence 11 The subject matter of these courses range from basic grammar to advanced reading 12 Standardized tests are available for levels one through six. Based on tests they prepare teachers evaluate students in levels 7 through 11. 18 The individual university determines the minimum score it finds ac- ceptable COLLEGE OF ENGLISH LANGUAGE proof of English proficiency before they will admit foreign students. The "CEL Teachers' Handbook" contains "in- formation concerning the structure and principle of teaching English as a second language at CEL." The teacher's handbook represents an accumulation of rules and regulations that have been given to teachers during the course of CEL's 3-1/2-year ex- istence; it discusses such matters as curriculum, lesson planning, class rules, work hours, leave poli- cies, pay schedules, dismissal and layoff proce- dures, seniority, and the probationary period. The Board's discretionary standard for asserting jurisdiction over profit and not-for-profit educa- tional institutions is $1 million gross annual reve- nues. 14 Since the Employer's gross annual reve- nues are not in excess of $1 million, we would de- cline to assert jurisdiction over the Employer if it is an educational institution. On the other hand, given the Board's $500,000 gross annual revenue standard for retail operations,15 a finding that the Employer's enterprise is more properly denominat- ed a retail operation would place it within our ju- risdiction. We find the Employer's operation differs sub- stantially from that of institutions which the Board has found to be educational. It is true that the Em- ployer is involved in education as that term is com- monly used. Its objective is "teaching English." But this alone does not end our inquiry into wheth- er the Board's discretionary $1 million standard for education institutions should be applied to the Em- ployer's operation. To make that determination we must look closely at characteristics common to en- tities to which the Board has applied its jurisdic- tional standard for educational institutions. There is no evidence that the Employer is ac- credited by any educational organization or group. Further, the Employer is not currently regulated or accredited by the State of California. While at the time of the hearing the Employer's operation was approved pursuant to section 94311(d) of the California Education Code (captioned "non-degree, occupational education" by the 1981 Legislative Amendments), CEL's approval under this section has been terminated. Instead CEL is currently "au- thorized" under section 94315, which applies to in- stitutions offering programs which fall somewhere between vocation and avocational, or according to the text of section 94315, "education which devel- ops or improves an occupational skill, knowledge, or ability." Expressly exempt from coverage by section 94315 are institutions offering education 14 Cornell University, 183 NLRB 329 (1970), Windsor School, 200 NLRB 991 (1972). See NLRB Rules & Regulations, Sec 103.1. 1 1 Carolina Supplies Co, 122 NLRB 88 (1958) 1067 with an "educational, professional, technical, or vo- cational objective." Thus, even the State of Cali- fornia has placed the Employer in a category sepa- rate from institutions with an "educational" objec- tive. Moreover, unlike section 94311(d) which sets forth minimum operating standards which the Em- ployer was obliged tb satisfy in order to obtain ap- proval thereunder, section 94315, under which the Employer is now "authorized," contains no mini- mum operating standards. Section 94315 is simply a registration provision for competitive, unregulated educational operations, designed to serve the com- mercial purpose of "assist[ing] consumers who seek redress." In fact, section 94315 explicitly makes it unlawful for any institution filing thereunder to represent that the State of California has made any "evaluation recognition, accreditation, approval, or endorsement of the institution or the education of- fered." It is therefore apparent that the Employer's operation is lacking in the institutional or govern- mental accreditation or regulation common to the majority of insitutions found to be educational by this Board. While this Board is not bound by classi- fications or categorizations made by other govern- mental bodies, we find it significant that the Em- ployer is now foreclosed by the State of California from approval under State Education Code sec- tions applying to institutions having educational, professional, technical, or vocational objectives and that the ony State Education Code provision appli- cable to the Employer is one designed for the com- mercial purpose of assisting consumers in seeking redress. We also note that while the Employer on the surface appears to possess a number of characteris- tics generally associated with entities denominated by this Board as educational, upon closer consider- ation many such characteristics exist in name only. Thus, while the Employer has minimum qualifica- tions for admission, they are nonacademic, 17 years of age being sufficient qualification. As the require- ments for graduation, students must complete a specified number of hours on the clock in class and achieve satisfactory grades before they are entitled to receive a diploma from CEL. However, the re- quired number of hours in attendance is miniscule as compared to those required for graduation from institutions found by the Board to be educational. Indeed, CEL seeks to accomplish its single objec- tive of "teaching English in the shortest possible length of time with the greatest proficiency" through two programs which take from 80 to 120 clock hours to complete. Further, diplomas from the Employer are available only upon request, and then are distributed by a clerical employee. More 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD importantly, such diplomas appear to be of limited value, since there is evidence of only five colleges or, universities which accept a diploma or letter of proficiency in English from CEL as evidence of English proficiency. Finally, certain characteristics of the Employer customarily associated with insti- tutions having exclusively educational objectives were mandated by California Education Code, sec- tion 94311(d), under which the Employer's oper- ation was formerly approved. However, section 94315, which now controls institutions like CEL, sets no requirement as to the quality and content of courses or the qualifications and character of in- structors and administrators. Thus, while the Em- ployer at the time of hearing had established courses of study and teachers who were certified by the State, in the future only self-regulation and market pressures will control the quality of instruc- tion provided by the Employer. On these facts, we find that the Employer is sub- stantially dissimilar from the colleges, universities, and secondary schools which have been found by this Board to be educational institutions within the intendment of our jurisdictional standard for such operations. We, therefore, find it inappropriate to apply to the Employer the $1 million dollar juris- dictional amount applied to institutions denominat- ed as educational by the Board. We find, rather, that the Employer's operation is more properly classified as a retail establishment providing a serv- ice to consumers and apply the Board's $500,000 jurisdictional standard for such operations in this case. The Employer, which has gross annual reve- nues in excess of $500,000, satisfies the Board's ju- risdictional standard for retail operations, and we find that it would effectuate the purposes of the Act to assert jurisdiction. 2. The Associated Language Teachers of Amer- ica is a labor organization within the meaning of Section 2(5) of the Act and claims to represent cer- tain employees' of, the Employer.16 3. A question affecting commerce exists concern- ing the representation of certain employees of the Employer within the meaning of Section 9(c)(1) and 2(6) and (7) of the Act. 4. The parties stipulated that if the Employer is found to be an educational institution, the appropri- ate unit would consist of: 16 Although the Employer does not contest the labor organization status of the Petitioner in any of the posthearing documents it filed with the Board, at the hearing the Employer refused to enter into a stipulation that the Petitioner is a labor organization with the meaning of the Act The undisputed evidence establishes that the Petitioner is an organization in which employees participate, that its primary purpose is to negotiate with the Employer with regard to wages, hours, and other conditions of employment, and that its president has engaged in discussions regarding such matters with the Employer. We, therefore, find the Petitioner to be a labor organization within the meaning of the Act. All teachers employed by the Employer at its facility at 2500 Wilshire Blvd., Suite 812, Los Angeles, CA, excluding all day-to-day substi- tutes, office clerical employees, guards, and su- pervisors as defined in the Act. However, the Employer takes the position that if it is found to be a retail establishment, the appropriate unit should consist of All teachers, the director of international rela- tions, and all office clerical employees, exclud- ing all day-to-day substitutes, confidential em- ployees, guards and supervisors as defined in the Act. The Employer argues, in essence, that a finding that it is a retail establishment belies a finding that its teachers are professional employees who should be treated differently from the balance of its em- ployees. Thus, according to the Employer,_ since it is a small school where employees regularly inter- act with one another, there "should not be created a residue of unrepresented employees." The peti- tioner, on the other hand, maintains that regardless of whether the Employer is found to be an educa- tional institution or a retail establishment, the teachers are professional employees with a commu- nity of interest separate and apart from the Em- ployer's other employees and that a separate unit of teachers is therefore appropriate. On the facts set forth below, we find that irrespective of the teach-' ers' status as professional employees, they have a community of interest separate from that of the Employer's other employees, and that the unit sought by the Petitioner is therefore appropriate. The Employer occupies a suite of some 21 rooms of the 16th floor of a building at 2500 Wilshire Boulevard in Los Angeles. The Employer employs a total of about 21 employees, 14 of whom are teachers. All CEL employees are supervised by CEL president Khadivian and CEL director, Dr. Holkonee. The' nonteachers work 9 a.m. to 5 p.m. daily. The teachers' work hours are dictated by their teaching schedules-9 a.m. to 1 p.m., if they have morning classes; or 1 p.m. to 3:45 p.m., if they have afternoon classes. CEL employees re- ceive neither health nor pension benefits. Mark Blake, the director of international relations, and Karen Wilson, the bookkeeper, are salaried. The balance of CEL's nonsupervisory employees are hourly paid; the teachers are paid at a rate higher than that paid to nonteachers.17 At least some of the terms and conditions of employment of the teachers are governed by the CEL teacher's hand- book mentioned above. There is no evidence of a i' The teachers' starting pay is $7 per hour COLLEGE OF ENGLISH LANGUAGE comparable document applicable to the non- teachers. The teachers apparently have individual employment contracts with the Employer which allow for their termination with 1 week's notice. With the exception of the director of international relations, there is no indication that similar arrange- ments exist between the Employer and the non- teachers. As discussed in more detail below, the teachers, unlike many other nonsupervisory em- ployees, do not have offices of their own. As to the work performed by and qualifications of CEL teachers, Pierre Maurice Beaston, a teach- er and representative of the Associated Language Teachers of America, testified without contradic- tion that he originates his own lesson plans, which the Employer never discussed with him, and exer- cises discretion in the method and materials he uses to teach his classes.18 Baston further testified that the State of California considers persons qualified to teach English as a second language in the State if they have either received a certificate for train- ing in English as a second language or has studied the English Language extensively in an undergrad- uate course and received a Bachelor of Arts Degree in English. CEL's own student handbook characterizes its teachers as "the most highly skilled instructors through education and training," and states their qualifications includes 5 years of university English studies, various teaching certifi- cates, and a minimum of 4 years' experience teach- ing English. Baston himself has a Bachelor of Arts Degree in English and Cinema. Six teachers are certified by the State Office of Private Post-Sec- ondary Education and also possess certificates to teach adult education. Although there is testimony that all of the non- teachers have had occasion to substitute for the teachers when it has been too late for CEL to get another substitute or when one is unavailable, CEL President Khadivian, testified that these individuals are not qualified to be teachers. As to the work performed by the nonteachers and their contact with the teachers, the evidence establishes the following: Connie Louise, the assistant director, has her own office. Louise works directly with the teach- ers, and reminds them about, and works with them regarding, turning in their student evaluation cards, correctly filling out their registration sheets, and other matters which arise. According to Khadi- vian, Louise frequently comes in contact with the students. 18 According to Baston, he uses, an effective mix of textbook and out- side materials to drill and expose his students to the rules of grammar, listening comprehension, reading comprehension, and vocabulary skills. 1069 Blake, as director of international relations, re- cruits students by introducing CEL to other schools and agencies that refer students, and through questionnaires distributed to students by teachers. Blake, who has his own office, has an em- ployment contract with CEL which allows the Employer to terminate him on 1 month's notice. Wilson, at the time of the hearing, had been em- ployed by CEL as a bookkeeper for 3 weeks. Wilson, who has her own room, has contact with the teachers regarding their pay rates and other pay related matters. The receptionist works at a desk which is in the reception area of CEL located across from the front door and at the end of the hall which con- nects all of the classrooms. She gives messages to the teachers, reproduces all of their tests and, ac- cording to Khadivian, "takes care of any little thing that comes up that the teachers ask." Nazi Mahjour takes care of any immigration problems for the students. He contacts the teachers to verify if students are in class and asks for their cooperation with "sending the students in." Ivette Menendez has her own office.19 Menen- dez is responsible for the cassette tapes which are used by the teachers, and "anything general that comes up." According to Khadivian, Menendez, because she is very visible, comes in regular con- tact with students. A person identified as "Behnaz" is a secretary. There is no evidence regarding the work Behnaz performs or the amount of contact she has with either teachers or students.20 Wesley Hudson has been a full-time teacher for CEL since mid-September 1981, and, prior to that was a part-time teacher and occasional substitute. Hudson testified that he had been introduced to CEL director, Dr. Halakouee, but that he had had no later contact with him. Hudson also testified that he had never been introduced to and could not remember the name of the bookkeeper. According to Hudson's uncontradicted testimony, the teachers often congregate in the teachers' lounge or the smokers' lounge during their break periods which occur every hour for 10 minutes. Hudson indicated that he had seen Menendez, director of admissions, in these areas while running an errand to contact someone, but that the nonteachers never congre- gated with the teachers during a break in these areas. I9 The record does not reflect Menendez' job title 20 It is not possible from Khadivian's testimony to determine whether his personal secretary, "Pat," is one and the same person as Behnaz. The Employer concedes that Khadivian's personal secretary is a confidential employee and should therefore be excluded from any unit found appro- priate. 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the teachers share a community of interest distinct from that of the nonteachers and that the unit of teachers sought by the Petitioner, therefore, constitutes a separate appropriate unit for the purpose of collective bargaining within the meaning of the Act. The nonteachers provide ad- ministrative, managerial, and support services for CEL; in contrast, the teachers, with limited Em- ployer direction or intervention, teach English to attending students. By the Employer's own admis- sion, the nonteachers do not have the qualifications to be teachers. The nonteachers work regular 8- hour days, whereas the work schedule of the teachers depends upon the number and hours of the classes each teaches. There is evidence that at least five of the nonteachers have private offices or designated work areas; none of the teachers has an office at the Employer's facility. The teachers are paid at a higher rate than nonteachers; they are the only employees whose conditions of employment are governed by the teachers' handbook and, with the exception of the director of international rela- tions, appear to be the only employees having em- ployment contracts with CEL. In addition, the interaction between teachers and nonteachers ap- pears to be limited in kind and duration. Based on their separate community of interest,21 we find that the following unit of teachers sought by the Petitioner constitutes an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All teachers employed by the Employer at its facility at 2500 Wilshire Blvd., Suite 812, Los Angeles, CA, excluding all day-to-day substi- tutes, office clerical employees, guards, and su- pervisors as defined in the Act. [Direction of Election omitted from publication] III In view of our finding that CEL's teachers share a community of interest separate and apart from that of the nonteachers , we find it unnec- essary to pass on the Petitioner's contention that the teachers are profes- sional employees within the meaning of the Act