Trustees of Tufts College

TRUSTEES OF TUFTS CLLEGECt 7X5 Trustees of Tufts College' and Local 925, Service Employees International Union, AFL-CIO- CLC,2 Petitioner. Case 1-RC-16510 August 27, 1980 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESI)ALE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Benjamin Smith. Following the hearing, this case was trans- ferred to the National Labor Relations Board in Washington, D.C., for decision pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Proce- dure, Series 8, as amended. Thereafter, the Em- ployer and the Petitioner filed briefs with the Board. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed.3 Upon the entire record in this case, including the briefs filed by the Employer and the Petitioner, the Board finds: i. Trustees of Tufts College, also referred to herein as the Employer or College, is a nonprofit Massachusetts corporation engaged as an educa- tional institution of higher learning and annually re- ceives gross revenues from such operation valued in excess of $1 million. In addition, the record shows that, during the 1978-79 year, approximately 54 percent of the College's enrollment, or about 7,000 students, came from States other than Massa- chusetts and, further, that the College received over $350,000 in Federal scholarship moneys through its students under the Basic Opportunity Grant program. In light of these facts, and having previously asserted jurisdiction over the Employ- er,4 we find that the Employer is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert ju- risdiction herein. 2. The Petitioner claims to represent certain em- ployees of the Employer. The Employer, however, i The name of the Employer appears a amended at he hearing. 2 The name of the P'etinlloner appears as amended at the hearing : See dlwcussion iru. item 2, labor organizatilon status iruroees of ufts Colhgi . 22') NRB 23 (152 177) 251 NLRB No. 108 refused to stipulate that the Petitioner is a labor or- ganization. In addition, the Employers contends that the Petitioner is an alter ego of "9 to 5," an or- ganization for women office workers, and that, in view of the relationship, both organizations should be listed on the ballot. To support its position the Employer served subpoenas duces tecum on both organizations seeking to review alleged transactions between the two organizations. The Hearing Offi- cer ruled that the issues raised by the Employer were irrelevant to these proceedings and granted the motion to quash filed by 9 to 5. Thereafter, the Petitioner's witness testified that the Petitioner exists for the purpose of dealing with employers over wages, rates of pay, hours, and conditions of employment; that it is party to collective-bargain- ing agreements with employers covered by the Act; that its members include employees Vf em- ployers covered by the Act, and that its members participate in the Petitioner's affairs. In light of these facts, the Hearing Officer sustained objections to the Employer's questions regarding the relation- ship between the Petitioner and 9 to 5, and granted the Petitioner's motion to quash the subpoena duces tecum served on the Petitioner. On the Employer's interlocutory appeal to the Regional Director, the Regional Director sustained the Hearing Officer's rulings. The Employer contends that the Hearing Officer erred in his rulings and that the subpenas should be reinstated and the hearing reopened to establish the nature of the relationship between 9 to 5 and the Petitioner. We find no merit in the Em- ployer's contention. Thus, the Hearing Officer cor- rectly ruled that any connection between 9 to 5 and the Petitioner is irrelevant to these proceed- ings.5 Accordingly, on the record before us, we find that Local 925, Service Employees Interna- tional Union, AFL-CIO-CLC, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. A question affecting commerce exists concern- ing the representation of employees of the Employ- er within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks to represent a unit of ap- proximately 325 full-time and regular part-time clerical and technical employees at the Employer's Medford, Massachusetts, campus. The Employer contends that only a universitywide unit is appro- priate, encompassing all unrepresented clerical and technical employees, including those located at the Boston campus. There is no collective-bargaining history for the employees in the petitioned-for unit, and no labor organization seeks to represent these employees in a broader unit. '" t'hiatll.co ('he/cr lba. In, 217 NLRB 1038, 1039 (1978) TRUSTEES OF TUFTS CLlEGE 755 786 IDECISIONS OF NATIONAl ILABOR RELATIONS H()ARD The Employer operates on two campuses. The Medford campus contains the School of Arts and Sciences and the Fletcher School of Law and Di- plomacy. The Boston campus contains the Medical School, the Dental School, and the School of Vet- erinary Medicine. The Medford and Boston cam- puses are approximately 6 miles apart. The Employer's highest authority is the board of trustees which meets annually. The board of trust- ees, through various committees such as the execu- tive committee, the finance committee, and the per- sonnel policy committee, carries on its functions during the periods between board meetings. The day-to-day operating authority is vested in the president. Reporting directly to the president is the provost and senior vice president. The provost has ultimate authority over all of the academic aspects of the Employer and all deans report to him. Other administrative functions are under various vice presidents and managers all of whom have univer- sitywide responsibilities, and some of whom main- tain offices on both campuses. The College is divided into five schools. The largest school is the School of Arts and Sciences whose faculty and support personnel are located almost entirely at the Medford campus. The excep- tion is the Boston School of Occupational Therapy (BSOT) which has approximately 240 students taking "therapy" courses at the Boston campus. BSOT clerical employees work primarily on the Boston campus, but there is also an office on the Medford campus. Various graduate departments and programs also come under the jurisdiction of the dean of Arts and Sciences, five of which, anatomy, biochemistry-pharmacology, dental sci- ences, molecular and micro-biology, and physiol- ogy, are located at the Boston campus and are re- sponsible for teaching basic science to the medical students and graduate students from Arts and Sci- ences. The Law School is located entirely on the Med- ford campus. It is a 2-year graduate program which is a cooperative venture between Tufts and Harvard University. The Law School enjoys a high degree of autonomy and has established its own personnel procedures and assigned responsibil- ity for these procedures to its own administrators.6 The faculties of the remaining three schools, Medical, Dental, and Veterinary, are located almost entirely at the Boston campus. The deans of each possess autonomy similar to that of the deans of the Law School and the Arts and Sciences, and s Although the L.aw School possesses a degree of autonomy with regard to personnel matters. the parties are in agreement that echnical and clerical employees employed at the Law School should he included in any unit found appropriate. each school is responsible for granting degrees in their respective schools. The Employer, contrary to the Petitioner, con- tends that the only appropriate unit is one encom- passing the clerical and technical employees em- ployed at both the Medford and Boston campuses. In Cornell University, 183 NLRB 329 (1970), the Board indicated that traditional principles for de- termining appropriate bargaining units would be applied to universities operating several facilities. These principles include consideration of such fac- tors as the geographical location of the facilities, employee skills and functions, extent of employee interchange, degree of interdependence or auton- omy of the facilities, centralization of management particularly in regard to labor relations, and prior bargaining history. The Board does not determine whether the petitioned-for unit is the most appro- priate unit. Rather the Board determines whether the petitioned-for unit is an appropriate unit for purposes of collective bargaining. Applying these principles here, we find that a unit of all clerical and technical employees employed by the Employ- er at its Medford, Massachusetts, campus consti- tutes an identifiable group of employees with a suf- ficiently separate community of interest to warrant their representation in a separate unit. The Medford campus is situated on 150 acres in Medford, Massachusetts, a suburb of Boston. It consists of approximately 100 buildings and, with the exception of the Law School, its main function is directed at the education of undergraduate stu- dents in the School of Arts and Sciences. There are approximately 325 clerical and technical employees working at the Medford campus. The Boston campus, on the other hand, is located in a "down- town" area of Boston where its primary emphasis is the graduate education of Medical, Dental, and Veterinary School students. The Boston campus consists of six buildings located in the 13-acre Tufts-New England Medical Center compound. 7 There are approximately 275 clerical and technical employees working at the Boston campus. From these facts, it is clear that the Medford campus has a definite separate geographic identity from the Boston campus. The record also demonstrates that there are sub- stantial areas of separation between the two cam- puses with regard to employment practices, condi- tions of employment, and the Employer's day-to- 7 In the 1960's the Tufts Medical and Dental Schaools entered into an arrangement with the Nevw England Medical Center Hospital whereby there was to be a degree of sharing of facilities and personnel In 1968, the arrangement was formalized in the incorporation of a nonprofit cr- poration Notwithstanding this arrangement, it is clear from he record that both institutions have retained their individual identities and aulon- omy. 1RUSITTS OF FILTIS C0 I :61" day management of labor relations affairs. For ex- ample, the Employer maintains separate personnel offices on the two campuses. The Employer's per- sonnel director has primary responsibility on a uni- versitywide basis for personnel matters and there is a degree of concentration of administrative func- tions in the Medford personnel office (MPO). However the day-to-day operations of the MPO and the Boston personnel office (BPO) are the re- sponsibility of the respective campus personnel managers. As job openings occur, the personnel office on the campus where the vacancy exists is notified, the job is listed on a "Job Opportunity Listing" and the lists are distributed to each campus with a separate sheet or list for vacant po- sitions on each campus. Each personnel office di- rects its own outside recruitment, with the MP() usually advertising in a local suburban paper and referring applicants to the MPO and the BPO using the Boston Globe and referring applicants to the BPO. An applicant for employment is normally in- terviewed at the campus office where the vacancy exists, and, after screening, is referred to the appro- priate department supervisor. The decision to hire is made by the department supervisor, who com- municates this decision to the appropriate campus personnel office which then processes the neces- sary paperwork to formalize the hiring. New hires normally receive their orientation at the campus personnel office on the campus where the job exists. Medford campus employees normally work from 9 a.m. to 5 p.m. but, during the summer months, most Medford employees work from 8 a.m. to 4 p.m. Many of the employees at the Boston campus work the same 9-to-5 hours, but a substantial number work from 8:30 a.m. to 4:30 p.m. and, unlike the Medford campus employees, those at the Boston campus work their schedules on a full-year basis. In addition, the day-to-day scheduling of in- dividual employees is controlled by the employee's immediate departmental supervisor who schedules lunch breaks, coffeebreaks, leaves of absences, leaves without pay, personal leave, and authorized overtime. Employee grievances normally are re- solved within the employee's department and, when not resolved within the department, are re- ferred to the campus personnel office manager for investigation and resolution. Only grievances that remain unresolved at the campus level are referred to the personnel director. The personnel director testified, however, that no grievance has reached her level in the year and a half that she has been director. As with grievances, discipline starts with the de- partment supervisors who issue verbal and written warnings without consultation with the campus personnel office. Discharge normally follows con- sultation and clearance with the appropriate per- sonnel manager except that a supervisor may dis- charge immediately "for cause" and discuss it with the appropriate personnel manager later. The wage and salary system is administered on a universitywide basis by the compensation emplo,- er. However, supervisors have substantial discre- tion to set wages within the established ranges. Indeed, the record shows that starting salaries for clerical and technical employees hired after Jul\ 1978 for the Boston campus were significantly higher than the starting salaries for clericals and technicals hired to work at the Medford campus." Promotions and merit salary increases also are initi- ated by the employce's immediate supervisor, andt need only be approved by the appropriate person- nel manager. The employees' medical and hospital- ization coverage also differs on the two campuses. Employees on the Medford campus are covered by Blue Cross-Blue Shield while the Boston campus employees are covered by the Boston Health Serv- ice Department. Employee parking permits for one campus have no validity on the other campus. Em- ployees on the Boston campus have to wear pic- ture identification cards but Medford campus em- ployees need only carry their identification on their person. Security arrangements also differ for both campuses. At Medford, the campus grounds are open 24 hours a day. On the Boston campus, all doors except the main entrance are locked at 5 p.m., all visitors must sign in with the campus police stationed at the main entrance, and Boston campus buildings are monitored by security cam- eras. The record also shows that the equipment and materials used by employees at the Boston campus. i.e., radiological, biological, and chemical, present different safety conditions on the Boston campus, a factor totally lacking at the Medford campus. The Employer nevertheless contends that the employees of the two campuses cannot be consid- ered autonomous units in view of the high degree of interdependence and commonality of terms and conditions of employment, including the centraliza- tion of administrative functions and the interchange of employees between the two campuses. The Eim- " 'hii inrforitmation a, c tilllated III the i'et E 1h t), i hiilh , ad imitted into e'idelnce oer the Emplo,er' ohbjeclion that the dcutlelll ,as' not properly autheillcated and ais incomplete \'e ind ll, mlcrit il Ihe Employer' , posilltio Per l xh 69. although a conmpdalat iil. A.i cl.i 1, etablished thr<ough he v ttel.,, hio hald ilpiled the iI .rrlo.tllln front al ulllcrisl c1lptit.r pritllt ht 'Ah e il ii 1 TI(i a h1i[ t th i \lhll as. rccied Irl it idetlc. Ilt No,emher 2. 1'97 , hll. t tihe rctr herrlrlg da;te va [)ecenmher 14. 1"79 .ld that.l rl. I thllnjdilg al l IllltrucIIllil pe..i It 42 ti.i . Ihc tllrpl>Cl did not Ir,,, t .iii e'idc tit ,t illlit.i l the t'ih ,,n iti, 0f 1 fll% 111AIll'd thcrcll I MiS Iii O 1 tillS Oil t(il ,ti 78X I)tCISIO)NS ()t NAI' IO()NAI. IAO()R REL.A'IO()NS B()ARI) ployer's arguments however, fail to give proper weight to the facts discussed above which show that the two campuses are in fact operated sepa- rately from each other. Thus, although the basic skills and functions of the clerical and technical employees on the two campuses are similar, the educational direction of the Medford campus is pri- marily concerned with undergraduate education while that of the Boston campus is primarily con- cerned with medical or scientific technologies. Al- though comlmon administrative functions and fringe benefits exist at the two campuses, there also are significant differences, supra. In addition, the record shows that employee interchange is almost nonexistent. The evidence shows that there were at least 3 but no more than 1()0, permanent transfers of employees from one campus to the other in the past several years, a de minimis number when com- pared with the number of clerical and technical employees employed at both campuses. Further- more there is virtually no temporary interchange of employees between the two campuses. This latter fact is amply demonstrated by the Employer's policy of avoiding even temporary interdepartment transfers by the use of "temporary" help from the temporary help employment agencies to cover tem- porary vacancies in the various departments. The Employer contends that the Board's deci- sion in Trustees of Tufts College, 229 NLRB 523 (1977), is controlling here. In that case, the Board found that the police officers of the Medford campus did not have a community of interest suffi- ciently distinct and separate from that of the offi- cers at the Boston campus so as to warrant the es- tablishment of a separate unit. In so finding, the Board relied on evidence that the two small groups of officers were employed for a similar purpose, re- ceived essentially the same training, performed common duties, had frequent work relationships with one another, were subject to the same person- nel policies, and enjoyed common benefits. Also, the record showed, inter alia, that the chief of police at the Medford campus set some personnel policies applicable to all police officers, had a sig- nificant influence on hiring practices, and conferred regularly with the police captain at the Boston campus. We find in this record no such similar pat- tern or relationship between the clerical and tech- nical employees at the Medford and Boston cam- puses. Instead, we find that the clerical and technical employees at the Medford campus have a commu- nity of interest sufficiently distinct and separate from the clerical and technical employees at the Boston campus to warrant the establishment of a separate unit based on the following factors: the geographical separation of the Medford campus from the Boston campus; the existence of separate personnel offices to serve the Medford and Boston campus employees, respectively; the lack of sub- stantial interchange between the employees on the two campuses; differences in terms and conditions of employment ranging from Medford coverage and hours to safety conditions; and the lack of prior bargaining history. In short we consider the instant case to be more like Trustees of Boston Uni- versity,1 and President and Fellows of Harvard Col- lege, 1 than like the earlier Trustees of Tufts College case, supra. Although the parties stipulated to the inclusion or exclusion of most of the job classifications, there remains for consideration the determination of the unit placement of certain employees and/or groups of employees. Thus, the parties disagree as to the unit placement of the following: the "accounts pay- able supervisor"; part-time employees who work 20 hours or less per week; Thomas Malloy, a former campus police officer; vehicle taggers; the nurses aide; the licensed practical nurse; administrative as- sistants; the executive secretary-development sup- port services; and the assistant technical director- drama. The Employer would include all of these employees or permit some classifications to vote challenged ballots. The Petitioner would exclude all of the disputed employees. The record shows that Eleanor Young is the ac- counts payable supervisor in the accounts payable section of the controller's office. The Petitioner would exclude her on the ground she is a supervi- sor. Young directs the work of four employees within her area, with the authority to excuse them from work, verbally discipline them, recommend written warnings to her superior, assign and adjust workloads, settle work disputes and grievances, recommend overtime and, when authorized, assign the same, and evaluate employee performance. In addition, the assistant controller estimated that during an average year Ms. Young attends two of the four supervisor meetings. Ms. Young also sat in on a recent hiring interview where the agreement to hire was unanimous. In these circumstances, we conclude that Ms. Young is a supervisor within the meaning of Section 2(11) of the Act and is ex- cluded from the unit. The college employs approximately 16 part-time employees who, with one exception, work sched- ules of from 5 to 20 hours each week. The one ex- ception, a medical technician in the infirmary, works for a 3-hour period once a week. The Peti tioner would exclude these employees on the ground that they lack a community of interest be- cause the hours they work make them ineligible for 235 NRB 1233 (1(7X) i 22 t NL.R1 581 177) TIRL'S II:1S OF 'tlFS ('() I I (if fringe benefits. The Employer would include them on the ground that they are under the Employer's wage and salary plan, are assigned to the same de- partments in the same categories as the full-time employees, and perform the same work within their classifications. The Employer's policy is to treat as regular part-time employees those who work at least 21 hours per week. According to the employee handbook, it appears that part-time em- ployees who work less than 21 hours are not enti- tled to holiday pay, vacations, educational opportu- nities, life insurance, disability insurance, and basic medical coverage. In the absence of any other clearly defined and uniform system of classifying part-time employees, we find that regular part-time employees eligible to vote in the election are those individuals who work at least 21 hours per week and are covered by the Employer's regular benefit programs. Thomas Malloy is a former campus police officer who became physically unable to perform police duties and was reclassified as a police clerk. He works in the Medford campus police office along with two other police clerks who are undisputedly in the unit. In accord with university policy, Malloy works at a "red circled" salary which is higher than the salary of the police clerks but is lower than the salary of police officers. alloy, by special exception, is also permitted to wear his police uniform on the job but does not engage in any "police" work. In the course of his duties he answers the phone, records calls, records emergen- cies, dispatches over the radio, and at the end of the day writes out a report of the days occur- rences. In these circumstances we find Malloy to be a "police clerk," and, in light of the fact that the parties stipulated to include police clerks in the unit, we shall include Malloy in the unit. The Employer employes two vehicle taggers who work under the supervision of the Medford campus police chief. The Petitioner contends that the vehicle taggers are essentially service employ- ees and lack a sufficient community of interest with the clerical and technical employees. The record shows that the vehicle taggers patrol the campus parking areas and tag cars that are improperly parked or do not display a valid parking decal. The vehicle taggers report to the police station each morning, return during the day for lunch, and report back to the station about a half hour before the end of their shift to sort and file the parking tickets issued that day. They do not perform police functions, and they were excluded from voting in the election held in the police unit. In these cir- cumstances, we shall include them in the unit. ' See The Trustees of Columbia University in the Cry of .\fu. York, 222 NLRB 309, 311 (1976). At the Medford campus infirmary, the Employ- er, in addition to RNs, lab technicians, and cleri- cals, employs one licensed practical nurse and one nurses aide. The Petitioner would exclude these two employees on the ground that the LPN is a professional employee, and the nurses aide is a service employee. Contrary to the Petitioner's posi- tion, the Board has consistently held LPNs to be technical employees properly included in a unit with other technical employees. 2 However, the record herein shows that the LPN employed in the infirmary at the time of the hearing was a part-time employee working only 12 hours per week. Since we have excluded from the unit those part-time employees working less than 21 hours per ecek, we shall exclude the licensed practical nurse from the unit. With regard to the nurses aide, the record shows that she works from 7 am. to 2 p.m. in the inpatient area of the infirmary giving patient care. serving trays and beverages, changing hbeds. deli- vering specimens to the health scrxice laborator\ performing bedside cleaning jobs, and checking equipment. Thus, from the situs of her work and her hours, it appears that her most frequent on-the- job contacts are with the infirmary technicians and clerical employees, all of whom are in the unit sought herein. At the same time, the Petitioner of- fered no evidence to indicate that the nurses aide's worktime involved any close association or contact with employees represented in the service employ- ees unit. Accordingly, we shall include the nurses aide in the unit. With regard to the remaining classifications, i.e., the executive secretary-development support serv- ices, the assistant technical director-drama, and the 11 administrative assistants, there is insufficient exi- dence in the record to determine whether or not they should be included in the unit. Accordingly. we shall allow the employees employed in these job classifications to vote challenged ballots. Accordingly, we find that the following employ- ees constitute a separate appropriate unit for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act: All full-time and regular part-time clerical and technical employees including the vehicle tag- gers and nurses aide, employed by the Em- ployer at its Medford campus, excluding pro- fessional employees, guards, watchmen and su- pervisors as defined in the Act, and all other employees. [Direction of Election and Excelior footnote omitted from publication.] - Y, tul u d lr`.,t lar ! , l,-r t' tAa£u siiio Be'I . B. ,,'' d Ih , Burn, ri .%t,,ri rsil J[prjl[,l ( L tr, r. ' I Nl R i I n l-s