President & Fellows of Harvard College

National Labor Relations Board - Board Decisions

May 11, 1977

229 N.L.R.B. 586 (N.L.R.B. 1977)

586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The President and Fellows of Harvard College and
District 65, Distributive Workers of America,
Petitioner. Case 1-RC-13715
May 1 I, 1977
DECISION ON REVIEW AND ORDER
On January 15, 1976, the Regional Director for
Region 1 issued a Decision and Order in the above-
entitled proceeding, dismissing the petition because
he found that the unit sought by Petitioner did not
share a sufficiently separate community of interest to
justify creating a separate unit for them. Thereafter,
in accordance with Section 102.67 of the National
Labor Relations Board Rules and Regulations, Series
8, as amended, the Petitioner filed a timely request
for review of the Regional Director's decision,
contending that a substantial question of law and
policy is raised in that the Regional Director's
decision represented a sharp departure from official-
ly reported Board precedent and on substantial
factual issues was contrary to the record evidence,
and that the errors seriously prejudiced the rights of
the Petitioner and the employees whom it sought to
represent. By telegraphic order dated May 7, 1976,
the Board granted the Petitioner's request for review.
Thereafter, the Employer and the Petitioner filed
briefs on review.1
The Board has considered the entire record in this
case with respect to the issues under review,
including the briefs of the amicus curiae, and makes
the following findings:
1. A question affecting commerce exists concern-
ing the representation of employees of the Employer
within the meaning of Sections 9(c)(I) and 2(6) and
(7) of the Act.
2. The Petitioner seeks to represent a unit of
approximately 1,192 unrepresen ted clerical and
technical (including service) employees of the Har-
vard Medical Area Schools-i.e., Harvard Medical
School and Harvard School of Dental Medicine,
both of which operate under the faculty of Medicine,
and the Harvard School of Public Health, operated
as a separate school under the faculty of Public
Arnicur Curiae briefs were filed by: The American Council on
Education: Association of Independent Colleges and Universities in
Massachusetts; The Trustees of Boston College; Brown University;
Catholic University of America; College and University Personnel Associa-
tion: Cornell University; Duke University; The Johns Hopkins University;
New York University; Stanford University: University of Chicago;
University of Pennsylvania; C1niversity of Rochester; Vanderbilt Universi-
ty: and Yale University.
The term "Medical Area" refers to the campus of the three aforemen-
tioned schools which is located approximately 3 miles from the University's
main campus.
"Aner 24 days of hearing, the parties jointly moved that the Regional
Director confine the hearing to the basic issue of the appropriate scope of
the unit. referred to as "Phase I." By the terms ofthe mooon:
229 NLRB No. 97
Health. The petitioned-for unit includes employees
of the Harvard Medical School for work at various
hospital and research facilities which are affiliated
with the Medical Area.2 Among the teaching
hospitals are Beth Israel, Boston Hospital for
Women, Children's Hospital Medical Center, Peter
Bent Brigham Hospital, and the New England
Deaconess Hospital. The research facilities include
Animal Research Center and New England Regional
Primate Research Center, Center for Population
Studies, Biophysics Research Laboratory, Boston
Biomedical Research Institute, Shields Warren Radi-
ation Laboratory, Harvard-M.I.T. Program in
Health Sciences, and Research Institute for Medicine
and Chemistry.
The Employer contends that only a universitywide
unit, encompassing all unrepresented clerical and
technical (including service) employees employed by
the University, is appropriate. There is no collective-
bargaining history for the employees in the peti-
tioned-for unit, and no labor organization seeks to
represent these employees in a wider unit.3
The Employer operates Harvard College, Radcliff
College, 10 graduate schools, numerous museums, a
variety of scientific laboratories, and a library system
which serves all of the schools and research facilities.
The chief executive officer of Harvard is the
president of the University. He delegates administra-
tive authority to vice presidents for finance, adrninis-
tration, government and community affairs, and
alumni affairs and development. The president also
appoints the deans of the eight faculties which are
responsible for carrying out the academic functions
of the Employer. The deans are directly responsible
to the president with respect to academic affairs, but
deal generally with the vice presidents over adminis-
trative matters. As of the date of the hearing,
Harvard employed in excess of 10,000 employees. Of
these, 2,169 were teaching faculty; 2,912 were
professional, managerial, or administrative nonfacul-
ty oficers; 3,591 were salaried clerical and technical
(including service) employees; and 1,686 were hourly
paid employees.4
II]f the unit petitioned for is determined to be appropriate, the case be
returned to the Hearing Oflicer (Phase 11) for further hearing, the filing
of briefs and a decision by the Regional Director on issues of unit
placement.
That if the unit petitioned for is determined to be inappropriate that
determination be the decision and order ofthe Regional Director under
Section 102.67@) of the Board's Rules and Regulations.
The motion was granted by the Regional Director on May 8, 1975.
The hourly paid employees are organized by nine unions in separate
uuiu dicus.~Ji.i employees, malntenancc employees, power plant employ-
ees, food service employees, pol~ce oflicers, bartenders and dining room
THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE 587
The authority to establish wages, job classifica-
tions, and working conditions for the entire universi-
ty is delegated to the Central Personnel Office
(hereinafter CPO). Uniform personnel policies are
established by the Employer and published in the
Salaried Personnel Manual, to which strict adherence
is mandated. A11 nonteaching positions must be listed
with the CPO. The employing department makes the
actual hiring decision, but the specific terms of the
offer of employment must be approved in advance
by the CPO. Any exceptions to the application of the
salary guidelines must be requested and justified by
the hiring department and approved by the CPO.
Located in the medical area is the Medical Area
Personnel Office (hereinafter MAPO) which is the
only branch facility of the CPO. MAPO is under the
direction of a manager with a staff of six and carries
out a variety of personnel functions only for
employees in the Medical Area. These functions
include salary administration, responding to inqui-
ries regarding employee benefits, development and
implementation of orientation programs, recruit-
ment, job advertising, interviewing, and reference
checking. Application forms for employment in the
Medical Area are filled out in MAPO and copies are
retained by that office. MAPO does not have the
authority to establish job classifications or job
descriptions. However, when hiring is done in the
Medical Area the hiring department discusses and
settles the exact starting salary with MAPO. While
the department makes the final decision, approval
must be obtained from MAPO, not the CPO, prior to
any offer of employment. Ekfore the employee is
added to the payroll, the CPO must verify that the
job classification conforms to the posted job descrip-
tion, that the salary conforms to the salary program,
and that aff~rmative action job listing requirements
have been met.
The CPO has an employee relations division which
is responsible for the handling of employment
problems. The first step in review of employment
problems is an informal grievance procedure. The
employee must discuss the problem with her or his
supervisor and, when necessary, with higher levels of
supervision, department personnel representatives, or
a representative of the CPO employee relations
division. The record shows that, while some minor
matters are handled by the branch staff, MAPO
usually refers informal grievance matters to the CPO
employee relations division.
The second step in review of employment problems
is a formal procedure which is followed only after the
informal review has failed to solve the problem. The
employees, employees engaeed in composition work, employees engaged in
omet snd related w~rk, ' .%d bindery and shipping employees. (Ihe last
three are craft units located in the Harvard University Priming Oficc.)
employee may obtain review by the dean or
administrative department head and the director of
personnel. Further review may be obtained by a
three-member panel consisting of one member
selected by the employee, one by the dean or
administrative department head, and one who is
chosen by the other two members. MAPO plays no
role in the formal review procedure, other than
referring the problem to the CPO.
As stated above, the Petitioner contends that the
clerical and technical (including service) employees
employed by the Harvard Medical Area Schools
constitute a unit appropriate for the purpose of
collective bargaining. The Board indicated in CorneN
University, 183 NLRB 329 (1970), that traditional
principles for determining appropriate bargaining
units would be applied to universities operating
several facilities. These principles include consider-
ation of such factors as the geographical location of
the facilities in relation to each other, differences or
similarities m skills and functions of the employees,
the extent of employee interchange, degree of
interdependence or autonomy of the plants, centrali-
zation of management particularly in regard to labor
relations, and prior bargaining history. In consider-
ing these factors, the Board's task is not to determine
whether the petitioned-for unit is the most appropri-
ate. Rather, it is to determine whether the petitioned-
for unit is appropriate for purposes of collective
bargaining5
We find, on examination of the entire record in
light of these factors, that a unit consisting of all
clerical and technical (including service) employees
employed by the Harvard Medical Area Schools
constitutes an identifiable group of employees with a
sufficiently separate community of interests to
warrant their representation in a separate unit.
The Medical Area has a separate identity from the
rest of the University in that it is geographically
distinct. It is located approximately 3 miles from the
University's main campus and consists of a cluster of
nine buildings which span some four blocks. The
Harvard Medical School occupies seven buildings-
four laboratories, the administration building, Van-
derbilt Hall, and the Library of Medicine. The
Harvard School of Public Health and the Harvard
School of Dental Medicine occupy two buildings
adjacent to the Medical School. There are six other
medical institutions within six blocks of the three
Medical Schools-Boston Hospital for Women,
Peter Bent Brigham Hospital, Children's Hospital
Medical Center, Children's Cancer Research Foun-
dation, New England Deaconess Hospital, and
Leland SfanfordJr. Universirv. 194 N1-4B 1110, 121 1 (!5)72).
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shields Warren Radiation Laboratory. Thus, al-
though the Medical Schools are not operated as a
separate administrative unit, they share a campus
apart from the rest of the University and constitute a
single entity identifiable as the "Medical Area."
While 90 percent of the employees of the Medical
Area schools work in those schools, 10 percent of the
employees work in hospitals or research facilities
which are related and/or affiliated to the schools, but
are located at varying distances from the Medical
Area. Some are on its immediate periphery such as
Shields Warren Radiation Laboratory, Boston HOS-
pita1 for Women, Peter Bent Brigham Hospital,
Children's Hospital Medical Center, and New
England Deaconess Hospital. Others, such as the
Harvard-M.I.T. Program in Health Sciences and
Research Institute for Medicine and Chemistry, are
in Cambridge. Two facilities, at which approximately
68 Medical Area employees work, are Animal
Research Center and New England Regional Pri-
mate Research Center, which are located in South-
boro, Massachusetts, 22 miles from the Medical
Area.
The Employer argues that by including employees
who work at related facilities outside of the Medical
Area, particularly those in Southboro, Massachu-
setts, the Petitioner seeks a unit which does not have
geographical integrity. We disagree. The great
majority of employees in the petitioned-for unit work
in the Medical Area. Only a minority of employees
work outside the area and those employees are linked
to the Medical Area by the fact that they are on the
budget of the Medical Area Schools, their work is
medically oriented like that of employees located in
the Medical Area, and they are under the jurisdiction
of MAPO. The inclusion of a small number of
employees who are geographically separated from,
but who have significant links with the majority of
employees in the proposed unit, does not destroy the
validity of finding a separate unit based, in part, on
geographical considerations.
The work of the employees in the Medical Area
and related facilities differs from that performed by
other clerical and technical employees in the Univer-
sity in that it is primarily medically oriented.
Although the work in the Medical Area involves
skills and functions similar to those in other schools
and departments of the University, there are some
important distinctions. The unit sought within the
Medical Area consists of 40 percent technical, 46
percent clerical, and 14 percent service employees,
whereas the unit within the rest of the University
consists of 8 percent technical, 87 percent clerical,
and 5 percent service employees. The substantially
higher percentage of technical e~n~loyeob in ;;LC
Medical Area underscores the fact that, whereas
other areas of the University may be involved in
scientific research, there is a concentration of this
type of work in the Medical Area which gives it a
distinct character.
A relatively small number of transfers occurs with
respect to Medical Area employees. Of 249 transfers
of salaried supporting staff employees between
schools and major departments in the University
during a recent 2-1/2-year period, only 49 were
between schools in the Medical Area and other
schools or departments. There is no evidence
whatever of temporary interchange of employees
between the Medical Area and other university
schools or departments.
The Employer itself gave recognition to the
separate character of the Medical Area by establish-
ing MAPO. Although there are numerous colleges,
graduate schools, museums, and research facilities in
the University, only the Medical Area has its own
branch of the personnel office. Furthermore, MAPO
is not a branch office which may be used by any
university employee, as is often the case with satellite
offices. Instead, it serves only the employees em-
ployed by the Medical Area Schools and their related
facilities. Although orientation programs for employ-
ees in the Medical Area are available through the
CPO, MAPO develops and implements orientation
programs exclusively for Medical Area personnel.
Hiring departments in the Medical Area need only
get prior approval of offers of employment from
MAPO, whereas other departments in the University
must get such approval from the CPO. Unlike
persons seeking employment in other areas of the
University, those seeking employment in the Medical
Area may apply directly to MAPO and be inter-
viewed at the branch ofice. Although the application
form is thereafter sent to the CPO, a copy is retained
on file at MAPO. While the major work problems of
all university employees are referred to the CPO, the
employees in the Medical Area have the unique
opportunity to bring minor work-related problems to
MAPO for resolution. The very existence of MAPO,
then, indicates the Employer's recognition of the fact
that employees in the Medical Area and its related
facilities have a separate community of interest.
The Employer, however, contends that a finding
that the petitioned-for unit is appropriate would give
controlling weight to the Petitioner's extent of
organization in contravention of Section 9(c)(5) of
the Act. We disagree. Our conclusion here is based
upon such traditional factors as the geographical
separation of the Medical Area, the absence of
interchange between employees of the Medical Area
and other university schools or departments, the
distinct meGi~d oiientdtioll ui the employees, the
separate supervision of the employees, the separate
THE PRESIDENT AND FELLOWS OF HARVARD COLLEGE 589
hiring of employees, the existence of a separate
personnel office to serve the Medical Area employees
exclusively, and the lack of prior bargaining history.
Therefore, even if we consider the extent of organiza-
tion by the Petitioner-a factor which we may
consider together with other factors6 -it is clear that
we are not giving it controlling weight.7
Accordingly, we find that the following employees
constitute a separate appropriate unit for the purpos-
es of collective bargaining within the meaning of
Section 9(b) of the Act:
All of the clerical and technical (including
service) employees employed by the Schools
which make up Harvard's Medical Area-Har-
vard Medical School, Harvard School of Dental
Medicine. and the School of Public Health-
including employees of the Harvard Medical
School who work at the following research
facilities which are affiliated with the Medical
School: Animal Research Center, New England
Regional Primate Research Center, Center for
Population Studies, Biophysics Research Labora-
tory, Boston Biomedical Research Institute,
Shields Warren Radiation Laboratory, Harvard-
M.I.T. Program in Health Sciences, and Research
Institute for Medicine and Chemistry.
As stated above, the Regional Director for Region
1 granted a joint motion by the parties to continue
the hearing in the instant case with respect to the
issues of unit placement. We therefore remand this
matter to the Regional Director for the purpose of
conducting such hearing an$ determining the unit
placement of certain employees and/or categories of
employees.
ORDER
It is hereby ordered that the above-entitled matter
be, and it hereby is, remanded to the Regional
Director for Region 1 for the purpose of conducting
NL.R.B. v. Meiropoliton Li/e Imuronce Co.? 380 US. 438, 4 4 1 4 2
( 1965); Merropoliran Li/e Insurance Company ( Woonsochw, R. I.), 156 NLRB
1408, 1413 (1966).
' It is apparent from the attached dissent that there is no dispute about
the facts underlyng this decision, and little difference over the applicable
principles. Rather. the only difirence is in the interpretation and
significance to be accorded these facts and the conclusions to be drawn
therefrom on the basis of well-established principles which the Board has
heretofore followed in cases of this kind. This type of d~sagreement is
frequent and to be expected in highly detailed factual situations, as Board
Members reach their individual evaluation of the facts. Our colleagues'
conclusion. and their asserted distress. that this decision represents a
departure-indeed a "highly undesirable departurev-from Board prece-
dent regarding appropriate bargaining units for nonprofessional employees
of universities therefore seems unfounded. Our colleagues cite no Board
precedents from which this decision allegedly departs. Nor do our
. .cdltdguc-s ixph;n thpv fp-r lhnf this deci5ion wJ1 "only further enacerhate
the already unstable state of labor relations on our Nat~on's campuses."
Indeed, we have no evidence of record or any other knowledge that the
such further hearing as may be necessary to
determine the unit placement of certain employees
and/or categories of employees and for such further
actions as may be consistent with this Decision on
Review and Order.
MEMBERS PENELLO and WALTHER, dissenting:
We disagree with our colleagues' determination
that a unit limited to employees who (1) constitute
about one-third of Harvard's approximately 3,600
salaried clerical and technical (including service)
employees and (2) are employed in only 3 of the
University's 10 graduate schools, each of which deals
with the University as a separate entity, is appropri-
ate. In our judgment, the Regional Director was
clearly correct in dismissing the petition on the basis
that the employees sought "do not share a sufficient-
ly special community of interests which would justify
creating a separate unit for them." Today's decision
represents nothing short of Board sanctioning of
piecemeal department-by-department organizing of
nonprofessional employees on campus-a result
which on this record, we submit, is consistent with
neither Board precedent nor with sound collective-
bargaining principles.8
The Petitioner seeks to represent the salaried
clerical, technical, and service employees who are
employed in Harvard's "Medical Area." The parties,
with the consent of the Regional Director, have
agreed that this phase of the proceeding should be
limited to determining appropriate unit scope.
By way of background, ever since the Board's
assertion of jurisdiction over colleges and universities
in 1970,g we have sought in determining issues of unit
scope on campus to join together all employees who
share a common interest in working conditions into a
unit which coincides with a recognizable adrninistra-
tive, geographical, or operational subdivision of the
employer.10 In determining whether a unit which is
less than universitywide in scope is appropriate, we
have historically examined several relevant factors.
present state of labor relations on our campuses is unstable. Certainly, we
have no basis for believing that our decision will exacerbate this
hypothetical condition.
a Our colleagues in the majority seek to camouflage the legal and factual
deficiencies in their decision by implying that their differences with us
amount to nothing more than routine disagreement over a proper
"evaluation of the facts.'. We do not view our differences with the majority
as being quite so superficial. For, as we shall indicate below, the record
evidence-particularly that which the majority advances (i.e., "evalu-
ates")-simply will not support a reversal of the Regional Director. It is,
therefore, not that our "evaluation of facts" requires sustaining the Regional
Director, but rather any evaluation of the facts-including that of the
majority-requires such a result.
9 Cornell University, 138 NLRB 329 (1970).
lo For a thorough discussion of the factors which the Board relies upon
in determining appropriate bargaining unils at colleges and universities. see
Kennedy. "Educators' Role In Educaing the NLRB: ~equirement