Colegio Universitario del Turabo

National Labor Relations Board - Board DecisionsAug 27, 1980

251 N.L.R.B. 1531 (N.L.R.B. 1980)

COLEGIO UNIVERSITARIO DEL TURABO 15.3 1 Fundacion Educativa Ana G. Mendez, Inc. d/b/a Colegio Universitario del Turabo and Concilio de Profesores Universitarios. Case 24-CA- 4009 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On March 31, 1980, Administrative Law Judge Max Rosenberg issued the attached Decision in this proceeding. Thereafter, the General Counsel and the alleged discriminatee, Villafane,' filed excep- tions and a supporting brief, and Respondent filed comments as to counsel for the General Counsel's and Villafane's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. On May 1, 1980, Hector Villafane Ocasio filed exceptions to the Ad- ministrative Law Judge's Decision on his own behalf and as a member of the Charging Party. None of the parties alleged that Villafane had no standing to file exceptions, and we have considered them. 2 Contrary to the Administrative Law Judge's findings, the tenure re- quirement that professors have 30 graduate credits or a master's degree in their field of teaching was not promulgated in the August 15, 1977, "Manual of Standards and Procedure For Faculty Evaluation For Two Years and Tenure" but was formulated sometime in May 1978 before Vil- lafane's denial of tenure. However, we do not believe the Administrative Law Judge's error as to when the 30-credit rule was promulgated adds any support to the General Counsel's contention that the rule was estab- lished to discriminate against Villafane. In this connection, we note four other faculty members were also denied tenure at the same time as Villa- fane for not meeting the 30-credit or master's degree requirement DECISION STATEMENT OF THE CASE MAX ROSENBERG, Administrative Law Judge: With all parties represented, this proceeding was heard before me in Hato Rey, Puerto Rico, on November 6, 7, and 8, 1978, upon an amended complaint' filed by the General Counsel of the National Labor Relations Board and an I The Charging Party's name appears as amended at the hearing 251 NLRB No. 203 answer submitted thereto by Fundacion Educativa Ana G. Mendez, Inc. d/b/a Colegio Universitario del Turabo, herein called Respondent. At issue is whether Respond- ent violated Section 8(a)(l), (3), and (4) of the National Labor Relations Act, as amended, in its dealings with Hector Villafane Ocasio, member of the Charging Party, Concilio de Profesores Universitarios. 2 Briefs have been received from the General Counsel and Respondent which have been duly considered. Upon the entire record made in this proceeding, in- cluding my observation of the demeanor of the witnesses who testified, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent, a private nonprofit foundation organized under, and existing by virtue of, the laws of the Com- monwealth of Puerto Rico, is engaged in the operation of postsecondary educational institutions at Rio Piedras and Cupay, Puerto Rico, known as the Puerto Rico Junior College, and at Turabo, Puerto Rico, the only fa- cility involved herein. During the annual period material to this proceeding, Respondent purchased and caused to be transported and delivered to its educational institu- tions goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported and delivered to its educational institu- tions in interstate commerce directly from States of the United States to the Commonwealth of Puerto Rico. During the same period, Respondent derived gross rev- enues from the operation of its educational institutions in excess of $1 million exclusive of contributions. The com- plaint alleges, the answer admits, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1. THE LABOR ORGANIZATION INVOI.VED The complaint alleges, and Respondent's answer denies, that Concilio de Profesores Universitarios, herein called the Concilio, is a labor organization within the meaning of Section 2(5) of the Act. The record discloses that the Concilio exists for the purpose of representing faculty members in negotiating salaries, time schedules, and working conditions in general. Accordingly, I con- clude on the facts before me that the Concilio is a labor organization within the purview of Section 2(5).3 2 The original complaint, which issued on September 29, 1978, is based upon a charge filed on July 14, 1978, and served on July 17. 1978. and an amended charge filed and served on September 19, 1978 3 In its brief, Respondent seemingly urges, in reliance on the opinion of the United States Court of Appeals for the Second Circuit in .L.R.B. v Yeshiva University. 582 F2d 686 (1978), that the Concilio can gain no pro- tection under the Act because its members are composed of "managerial faculty employees On February 20, 1980. the United States Supreme Court affirmed the Second Circuit's finding that in that case the evidence supported the conclusion that the faculty members n question were "managerial" employees and hence could not avail themselves of the pro- tection of the Act afforded under Sec 8(a}(5) On the record before me, I am not convinced that the requisite eidence to support such a claim has been presented here. See N'L.R.B v Y'eshiva University. 444 US 72, fn 31 However. I would note that, inasmuch as Respondent is also charged Continued 1532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 111. THE ALLEGED UNFAIR LABOR PRACTICES The General Counsel contends that Respondent violat- ed Section 8(a)(3) and (4) of the Act when on May 6, 1978, Hector Villafane Ocasio, an instructor at the Cole- gio Universitario del Turabo, herein called CUT, was denied professional tenure because he had joined and as- sisted the Concilio, an organization composed of faculty members of Respondent, and because he had given testi- mony under the Act and/or had participated in prior Board proceedings involving this Respondent. The com- plaint, as amended at the hearing, also charges Respond- ent with having violated Section 8(a)(1), (3), and (4) of the Act by giving Villafane a written reprimand on Oc- tober 28, 1978, and by threatening to discharge him be- cause of his activities on behalf of the Concilio and be- cause he had filed the instant charge against it. Respond- ent denies the commission of any labor practices pro- scribed by the controlling legislation. As a backdrop to the instant litigation, a brief review of the history of labor relations between Respondent and its faculty is in order. As chronicled above, Respondent is a private foundation which operates, inter alia, CUT, which was founded in 1972. Under the guidance of the administration and faculty, students may obtain 4-year college degrees in the various academic disciplines. Respondent is governed by a president and a board of directors who appoint the vice presidents. Respondent's president, with the consent of the board, nominates a chancellor for CUT. This official, with the approval of the president and the board, designates a separate aca- demic dean, dean of administration, dean of students, and various associate deans. CUT has its own administrative council and academic board which formulate the aca- demic and administrative policies of the institution. In addition, Respondent also maintains various committees composed of faculty members, including a tenure com- mittee. With regard to the tenure committee, it is uncontro- verted that in April 1977 the chancellor of CUT desig- nated certain professors from the various institutes to serve on the tenure committee and to examine and evalu- ate the norms for granting permanent tenure to faculty members. Soon thereafter, this committee met and dis- cussed the norm which would require that a faculty member must possess a master's degree in the field in which he teaches or, lacking this, must have earned at least 30 credits in that field in order to attain permanent tenure on the CUT faculty. In this connection, it was the concensus of the tenure committee that such a require- ment was necessary to fulfill the mission of the institu- tion. The committee then proceeded to evaluate other norms. This evaluation was embodied in a "Manual of Standards and Procedures for Faculty Evaluation for Two Years and Permanent Tenure," which was ap- proved by the Administrative Council on August 15, 1977. At the outset, the Manual recited that: with having iolated Sec 8(a1(4) of the statute, the circumstance that the Concilio is not a labor organization within the meaning of Sec 2(5) has no bearing upon finding a iolatiton of the former section Professors who commenced their academic work at CUT in 1972, should be evaluated for tenure doing their sixth year of service to the institution (Sec. 3, Art. VII, Faculty Regulations). Hector Villafane was hired by Respondent in August 1972 as an instructor in the Institute of Human Affairs where he taught economics, as well as the social and po- litical sciences. His academic qualifications at the time of his hire included a 60-credit master's degree in planning which had been awarded by the University of Puerto Rico's School of Planning. After teaching economics for a year, Villafane was named director of the newly cre- ated Institute of Social Sciences in August 1973. In or about September 1974, the Associacion de Maes- tros Universitarios, herein called the AMU, a duly con- stituted labor organization which had previously orga- nized the faculty at Respondent's other institutions, 4 commenced a campaign to represent the faculty at CUT. During this drive, and on June 2, 1975, the contracts of three professors who had actively supported the AMU, Ramon Colon-Lopez, Pablo Diaz-Fernandez, and Rich- ard Baldassari-Cora, were not renewed despite the fact that their immediate supervisor, Villafane, who was the director of the Institute of Social Sciences in which they taught, had favorably evaluated them for continued em- ployment. This happenstance caused Villafane voluntar- ily to tender his resignation as the director of the insti- tute to Academic Dean Pedro Hernandez-Martir because his favorable evaluations were not accepted, and to resume his duties of teaching economics. The terminations of Colon, Diaz, and Baldassari prompted the AMU to file charges with the Board against Respondent in Case 24-CA-3639 which resulted in a complaint issued by the Regional Director for Region 24. Following a hearing before Administrative Law Judge James M. Fitzpatrick between January 19 and 22, 1976, he issued a Decision in which he found and concluded that Respondent had violated Section 8(a)(l) and (3) of the Act by discharging these faculty members because of their known efforts to install the AMU as the collective bargaining representative of the faculty at CUT. During the hearing before Administrative Judge Fitzpatrick, Villafane was called as a witness on behalf of the General Counsel. In his sojourn on the stand, Ad- ministrative Law Judge Fitzpatrick credited the testimo- ny of Villafane on two occasions regarding events which transpired in March and April 1975 relating to the rea- sons which Academic Dean Hernandez had expressed for terminating the three professors. In his decision which issued on June 21, 1976, Administrative Law Judge Fitzpatrick ordered Respondent to reinstate Colon, Diaz, and Baldassari to their former positions. The Administrative Law Judge's Order was affirmed by 4 On August 27. 1974, the AMU filed a petition with the Board's Re- gional Office in Case 24-RC-5453 seeking an election among the faculty members at Puerto Rico the Junior College campuses in Rio Piedras and Cupay Such an election as conducted which the AMU won and re- ceived a Board certification After its victor at the polls, the AMU and Respondent entered into a collectie-bargaining agreement covering the unit employees COLEGIO UNIVERSITARIO DEL TURAO() 1531 the Board on appeal on December 9, 1976,5 and the Re- spondent complied with said order. In October or early November 1975 Villafane for the first time joined the AMU and was elected its vice presi- dent. At the time Professor Alfredo Romero Bravo, an associate professor in the commercial administration de- partment, who had joined the AMU in 1974, was its president, and Professor Neli Jo Carmona de Barsy occu- pied the post of secretary. On November 4, 1975, Villa- fane filed a representation petition with the Board's Re- gional Office in Case 24-RC-569 seeking an election among Respondent's teaching personnel at CUT in a unit similar to the one already represented by AMU at Re- spondent's other institutions, and he testified concerning the appropriateness of the unit in support of the petition at a hearing held on November 24, 1975. Thereafter, an election was held on February 13, 1976, which the AMU decisively lost. Events abided until June 23, 1976, when Respondent refused to renew the contract of Professor Carmona de Barsy. This personnel action resulted in a charge which was filed with the Board in Case 24-CA-3788, and trig- gered a hearing before Administrative Law Judge Frank H. Itkin, which was held on May 9 and 10, 1977. Villa- fane had given a sworn statement to a Board agent in support of the charge and, although summoned as a wit- ness, was not called to testify in that proceeding. How- ever, Villafane's presence at the hearing was observed by Respondent's chancellor and attorney. On November 3, 1977, Administrative Law Judge Itkin issued his Deci- sion in which he found that Respondent had violated Section 8(a)(1) and (3) of the Act by terminating Profes- sor Carmona de Barsy due to her known engagement in activities on behalf of the AMU, and ordered that she be reinstated to her former position. 6 No appeal from Ad- ministrative Law Judge Itkin's Decision was taken to the Board, and Respondent complied with the Administra- tive Law Judge's reinstatement order. At the end of 1977, Villafane and the other officers of the AMU's chapter at CUT decided to change the name of the AMU to the Concilio in order to disassociate itself from the tarnished image of an electoral loser which the AMU had acquired in its attempt to enlist the collective support of the faculty at CUT. To enhance its electoral possibilities, the officers of the Concilio printed authori- zation cards and leaflets which they distributed to the faculty. Villafane, along with the other officers, also gave some leaflets to the chancellor of the school and conducted a meeting to discuss the new labor entity at the faculty lounge in the company of Respondent's ad- ministrators. Villafane also solicited signed authorization cards from the faculty members in February and March 1978. However, there is nothing in this record which even remotely suggests that Respondent's officials were aware that he had done so. Pursuant to the faculty regulations adopted by the ad- ministrative council on August 15, 1977, an evaluation for permanent tenure for the 1977-78 academic year was undertaken in early 1978 for 16 faculty members, includ- ' 227 NLRB 150 JD 773 77 ing Villafane. By letter of February 22, 1978, Didimio Barreto, the director of the Institute of Social Sciences, informed Villafane that on March 6, 1978, the evaluation would commence for all affected professors, and advised Villafane to bring his academic file record up to date to facilitate the appraisal. On February 24, 1978, Chancellor Gonzalez Lamela wrote a letter to Villafane in which he advised that: On Monday, March 6, 1978, the process of evalua- tions of professors for the tenure period will be ini- tiated as required by the Rules and Regulations. The latter will be conducted based on the Manual of rules and procedures for the valuation of the facul- ty for two years and tenure approved by the Admin- istrative Council on August 15, 1977. I am enclosing a copy of the erratum, instructions. procedures and general suggestions for different portions of the instrument evaluation. Suggestions made by the faculty concerning the implementation of the process are contained therein. I expect that this information will be of some use to you. On February 27, 1978, Chancellor Lamela dispatched an- other letter to Villafane informing the latter that Dr. Ronald Flores, the associate academic dean, would un- dertake an evaluation of Villafane's qualifications for per- manent tenure on March 6, 1978, and the chancellor so- licited Villafane's cooperation with Dr. Flores in the ap- praisal. On March 6 Villafane met with Dean Flores and en- gaged in a lengthy and full discussion concerning the norms which were to be utilized for the tenure assess- ment, including the tenure provisions set forth in the manual which had been adopted on August 15, 1977. Thereafter, meetings of the tenure committee were con- ducted in April and May 1978 to evaluate the qualifica- tions of the 16 professors for permanent tenure. It is un- disputed on this record, and I find, that Villafane did not possess the necessary 30 credits in economics, the field of his teaching specialty, and that his master's degree in planning, which was granted by the University of Puerto Rico, did not carry those credentials which had been es- tablished by CUT in the preceding August. In conse- quence of this shortcoming, Villafane was denied tenure by the appropriate committee. It is also undenied, and I find, that, of the 16 professors whose evaluations were under review, 5 failed to qualify for permanent tenure because they lacked either an appropriate degree in their teaching area or had not satisfied the 30-credit require- ment in the academic discipline in which they taught. It is further uncontroverted, and I find, that Professor Hector Garcia, who was recommended for permanent tenure by the committee, was a member and active sup- porter of the organizational efforts of the Concilio and, along with Villafane, distributed leaflets on behalf of that organization. On May 26, 1978, Villafane received a telegram from Chancellor Lamela requesting that the professor appear at the chancellor's office. Villafane did so, and learned that the tenure committee, whose evaluations the admin- 1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD istration had never previously overruled, after a survey of his qualifications for the attainment of permanent tenure as required under the faculty regulations, had de- termined that Villafane had failed to satisfy the criteria which had been established in early 1977. Villafane pro- claimed that the regulations, as well as the tenure com- mittee's decision, was unfair and illegal, and he requested a hearing on the matter before the administrative com- mittee. Chancellor Lamela advised Villafane to make his request in writing, and, after doing so, the professor was granted a hearing on May 30, 1978. Despite his full and unrestrained opportunity to present his cause, Villafane's permanent status was denied without prejudice to his future attainment of that goal. Apart from argumentative assertions, the General Counsel has singularly failed to establish by preponder- ant proof that the faculty regulations, which were first considered by a committee in April 1977 and finally pro- mulgated on August 15, 1977, and which provided that permanent tenure after 6 years of employment would be contingent upon a 30-credit proficiency in the subject taught, were particularly devised to punish Villafane by disqualifying him for that tenure because he was an ardent proponent of the organizational aims of the Con- cilio. Indeed, the record discloses that, despite his affin- ity to the AMU in late 1975, Villafane continued thereaf- ter to receive favorable ratings in his annual evaluations from his superiors and other encomiums even though his AMU cohort, Professor Carmon de Barsy, was treated discriminatorily by Respondent in 1976 when Villafane was pursuing the same organizational goals as his coun- terpart with the same alleged intensity. Moreover, during the tenure evaluation which occurred in April and May 1978, Villafane was denied permanency, along with sev- eral other professors who lacked the necessary credit re- quirements in the area of their teaching pursuits, while all other professors, including Hector Garcia, who was an active advocate of the Concilio's cause, were granted that award. In sum, I am convinced and find that Hector Villafane was denied permanent tenure as a member of the faculty at CUT not because of his involvement with the AMU nor the Concilio, or because he gave testimo- ny under the Act and/or participated in Board proceed- ings, but simply because he failed to satisfy a reasonable, nondiscriminatory university requirement that, in order to attain tenure after a 6-year period of faculty employ- ment, he was required to have a master's degree in his specialty of economics, or to have acquired 30-credits in that teaching field of endeavor, which he had not. Ac- cordingly, I conclude that, by failing to grant tenure to Professor Villafane, Respondent did not violate Section 8(a)(3) and (4) of the Act. The General Counsel's further contentions, added to the complaint by amendment at the hearing, are too frivolous to warrant serious consideration. In this con- nection, the General Counsel urges that Respondent of- fended the provisions of Section 8(a)(1), (3), and (4) of the statute when on October 28, 1978, it issued a written warning to Villafane that he would be discharged be- cause of his activities on behalf of the Concilio and be- cause he had filed the instant charges. What really is involved in this belated aspect of the General Counsel's advocative stance is that on Septem- ber 11, 1978, the students at CUT decided to embark upon a strike against the school administration to protest an increase in tuition at the university and other prob- lems which confronted them. Inasmuch as the student advisor who normally handled these grievances was ill, the strike leaders enlisted the services of Villafane to press their cause with Respondent's administrators in an attempt to end the protest. Villafane met on several oc- casions in late September with the administrators about the matter, and was advised to cease from intervening in the negotiations between CUT's officials and the student leaders. When Villafane refused to heed this advice and threatened to bring a lawsuit against them, the president of Respondent notified Villafane in writing on October 28, 1978, that Respondent would not tolerate his inter- vention in administrative matters dealing with the stu- dent body and his defiant attitude toward the administra- tion. The letter concluded that a repetition of this mis- conduct might lead to disciplinary action against Villa- fane in the future. The General Counsel maintains that Respondent vio- lated Section 8(a)(1), (3), and (4) of the Act solely on the ground that the October 28 warning was prompted by Villafane's involvement with the Concilio and because he had previously filed charges against Respondent. Apart from merely alleging this violation, the General Counsel proffered no evidence to support this charge which in any manner approximates preponderant proof thereof. I shall therefore dismiss these allegations from the com- plaint. Having found that the General Counsel has failed to sustain her burden of proof of the allegations set forth in the amended complaint, I shall order that the complaint be dismissed in its entirety. ORDER 7 IT IS HEREBY ORDERED that the complaint filed herein be, and it hereby is, dismissed in its entirety. 7 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 find- ings, conclusions, and recommended Order herein shall, as provided in 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.