Lycee Francais De New York

National Labor Relations Board - Board Decisions

Jan 23, 1985

273 N.L.R.B. 1538 (N.L.R.B. 1985)

1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lycee Francais de New York and United Federation
of Teachers, Local No. 2, New York State
United Teachers, American Federation of
Teachers, AFL-CIO. Cases 2-CA-19291 and
2-RC-19215
23 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
Upon a charge filed by the Union 3 December
1982, the General Counsel of the National Labor
Relations Board issued a complaint 18 January
1983 against the School (Lycee), the Respondent,
alleging that it has violated Section 8(a)(5) and (1)
of the National Labor Relations Act.
The complaint alleges that on 18 November
1982, following a Board election in Case 2-RC-
19215, the Union was certified as the exclusive col-
lective-bargaining representative of the School's
employees in the unit found appropriate. (Official
notice is taken of the "record" in the representation
proceeding as defined in the Board's Rules and
Regulations, Secs. 102.68 and 102.69(g), amended
Sept. 9, 1981, 46 Fed.Reg. 45922 (1981); Frontier
Hotel, 265 NLRB 343 (1982).) The complaint fur-
ther alleges that since 29 November 1982 the
School has refused to bargain with the Union. On
31 January 1983 the School filed its answer admit-
ting in part and denying in part the allegations in
the complaint.
On 8 February 1983 the General Counsel filed a
Motion for Summary Judgment. On 10 February
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the motion should not be granted. The
School filed a response.
The School's answer admits its refusal to bargain
but attacks the validity of the certification based on
its contention, set forth in its request for review
and motion to reopen record in the representation
proceeding, that the certified unit is not appropri-
ate for the purposes of collective bargaining within
the meaning of Section 9 of the Act. The General
Counsel argues that all material issues have previ-
ously been decided. Upon reconsideration, we have
decided that review of the unit question was erro-
neously denied. Accordingly, the Board has recon-
sidered the issue under review in this case and
makes the following findings.
Rulings on the Motion for Summary Judgment
The Employer (Lycee) is engaged in the oper-
ation of a private school offering a French curricu-
lum for about 944 nursery, elementary, and second-
ary school students. The Lycee is accredited by the
Board of Regents of the State of New York, the
French Ministry of Education, and the French
Ministry of Foreign Affairs. It offers the same
comprehensive curriculum, in the French language,
taught in French schools which leads to the
French baccalaureate examination.
The Lycee employs about 83 teachers, 13 sur-
veillants, 2 library aides, and 1 laboratory techni-
cian. Of these, 40 members of the faculty and a few
surveillants and aides are exchange visitors. Ex-
change visitors are personnel from France who are
assigned to the Lycee for up to 3 years. The Lycee
contends that, contrary to the certificaton by the
Board, the exchange visitors should be excluded
from the unit as temporary employees or because
they lack a community of interest with locally
hired employees.
The locally hired employees and the exchange
visitors share some significant terms and conditions
of employment. All of the employees are hired by
the president of the Lycee, who also evaluates
them and renews their contracts. They all may par-
ticipate in the Lycee's medical insurance program,
are paid monthly, have yearly contracts, and re-
ceive the same gross wages and supplemental work
payments. Both groups are supervised by the direc-
tors of their units, are required to meet with par-
ents, and are required to attend parent and teacher
meetings. They also share work and lounge areas
and have the same holidays, vacations, and work
year.
At the same time, there are significant differ-
ences in the employment conditions of the two
groups. French nationals who wish to become ex-
change visitors file an application with the presi-
dent of the Lycee. The president interviews some
of the applicants in France and then chooses from
among them. Those selected have a 1-year contract
with the Lycee. I
Exchange visitors receive a $1200 travel allow-
ance and $1000 allowance for settling costs. Their
visas do not allow them to work anywhere other
than the Lycee. Additionally, they are permitted to
work only for 3 years within an exchange visitor
program without special permission for an exten-
sion of time from U.S. immigration authorities. If
no extension is forthcoming from the immigration
authorities after 3 years, the employee must change
1 Contracts of exchange visitors on leave from the French Ministry of
Education must be approved by the Ministry All but four or five of the
exchange visitors are connected with the French Ministry of Education,
and the ensuing discussion refers primarily to their terms and conditions
of employment No party contends that the few exchange visitors who
are not in the Ministry of Education should be treated differently, in
terms of unit determination, from those who are
273 NLRB No. 191
LYCEE FRANCAIS DE NEW YORK 1539
his or her immigration status in order to continue
working in the United States. For 2 years the ex-
change visitors are not subject to local, state, or
Federal taxes. Thereafter, the exemption is lost.
The exchange visitors are not eligible to partici-
pate in the Lycee's pension program since it re-
quires 3 years of service at the Lycee. They contin-
ue to contribute to their own French government
pension program. Their time spent working at the
Lycee is credited toward their pension and seniori-
ty status in France. They work the same hours that
they work in France and, according to regulation
of the French Ministry of Education, cannot work
additional hours.
The exchange visitors from the Ministry of Edu-
cation continue to be covered by their French
health care program, although they may participate
in the Lycee's health plan if they desire. Should
they become ill and unable to work during their
term at the Lycee, exchange visitors are paid until
the end of their contract.
Significantly, the exchange visitors from the
Ministry of Education are evaluated by inspector
generals from the Ministry. The Lycee does not re-
ceive a copy of the inspector general's evaluation,
but it becomes a part of the teacher's record in
France. Moreover, the Ministry exchange visitors
can only be discharged with permission of the Min-
istry of Education. The exchange visitors are re-
quired to comply with French statutes which es-
tablish the rules of their profession. They also are
required, if selected, to ' sit on juries testing candi-
dates for French baccalaureates. For the latter task
the exchange visitors are paid by the French em-
bassy rather than the Lycee. .
In contrast, the locally hired employees average
8 to 9 years with the Lycee, although some have
been employed there for 20 or 25 years. They are
eligible for a deferred compensation plan after 3
years of employment. They have pension and med-
ical insurance plans. Unlike the Ministry exchange
visitors, the hours of locally hired employees are
based on the type and level of education degree so
that teachers with lesser degrees are required to
work more hours than those with higher degrees.
Locally hired employees are given 3 months of
sick leave with full pay and 3 months at half salary,
but do not have the contractual arrangement af-
forded exchange visitors. Similarly, the few ex-
change visitors not from the Ministry of Education
and locally hired employees may be discharged by
the president of the Lycee and are evaluated solely
by either the Lycee's director of studies or by the
director of their unit.
These facts demonstrate that the interests of the
exchange visitors diverge from those of the locally
hired employees in several significant ways. Al-
though their gross salaries are the same, those of
the exchange visitors are not subject to United
States' taxes for 2 years, which is as long as most
of the exchange visitors stay at the Lycee. Ex-
change visitors have their own pension and health
plans, although they may participate in the Lycee
health plan also if they desire. Their time at the
Lycee is credited to their pension and seniority
status in France. At the same time, exchange visi-
tors by virtue of the duration of their employment
are not eligible for the Lycee's deferred compensa-
tion plan. Most of the exchange visitors come from
the Ministry of Education and, thus, their con-
tracts, hours, and work performance are subject to
standards of the Ministry. Moreover, they are eval-
uated by inspector generals from the Ministry and
cannot be discharged without permission of the
Ministry. Pursuant to United States' immigration
laws, the duration of the exchange visitors' em-
ployment is limited, and they are not permitted to
work anywhere but the Lycee.2
As noted by the Regional Director, the exchange
visitors do share some terms and conditions of em-
ployment with the locally hired employees. Upon
reconsideration, however, we have concluded that
the instances when the interests of the exchange
visitors diverge from or are in conflict with those
of the locally hired employees are fundamental and
outweigh the instances of shared concerns. Thus,
when viewed in the totality, the community of in-
terest between the exchange visitors and the locally
hired employees is insufficient to warrant the inclu-
sion of the exchange visitors in the unit.3
ORDER
It is ordered that the General Counsel's Motion
for Summary Judgment be denied.
IT IS FURTHER ORDERED that the complaint be
dismissed and that the certification issued in Case
2-RC-19215 on 18 November 1982 be revoked,
and the election conducted therein on 9 November
1982 be set aside and that the representation pro-
ceeding be remanded to the Regional Director for
Region 2 for appropriate action consistent here-
with.
2 This factor is of possible relevance in the event of a strike.
3 In view of our finding regarding community of interest, we find It
unnecessary to pass on whether the exchange visitors are temporary em-
ployees. Additionally, we note that while German School Society, 260
NLRB 1250 (1982), is distinguishable in that there the "assigned" teach-
ers from the Federal Republic of Germany shared the same' hours and
hiring procedures with the locally hired teachers, to the extent that our
decision there is inconsistent with our decision here It is overruled.