The Catholic University of America

National Labor Relations Board - Board Decisions

Feb 20, 1973

201 N.L.R.B. 929 (N.L.R.B. 1973)

THE CATHOLIC UNIVERSITY OF AMERICA 929
The Catholic University of America and Law Faculty
Bargaining Committee , Petitioner. Case 5-RC-
8063
February 20, 1973
DECISION AND DIRECTION OF
ELECTION
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND PENELLO
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a
hearing was held before Hearing Officer William I.
Shooer of the National Labor Relations Board.
Following the close of the hearing the Regional
Director for Region 5 transferred this case to the
Board for decision. Thereafter, the Employer and the
Petitioner filed briefs.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority 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 affirmed.
Upon the entire record in this proceeding,2 the
Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act, and it will effectuate, the
purposes of the Act to assert jurisdiction herein.3
2. The labor organization involved claims to
represent certain employees of the Employer .4
3. A question affecting commerce exists concern-
ing the representation of certain employees of the
Employer within the meaning of Sections 9(c)(1) and
2(6) and (7) of the Act.
4. The appropriate unit:
On the basis of Fordham University, supra, Petition-
er requests determination of the following unit as
appropriate:
All members of the full-time faculty of the Law
School (Columbus School of Law) of the Catholic
University of America, exclusive of administra-
tive personnel. Excluded: Dean, Associate Dean,
Assistant Dean, and all other employees and
supervisors as defined in the Act.
1 The Employer's motion to strike parts of or to reject Petitioner's brief
on the grounds that said brief constitutes an attempt to incorporate the
record in Fordham University, 193 NLRB No . 23, into the instant record is
hereby denied , since, in our view, said motion is without merit.
2 Petitioner's request for oral argument is hereby denied , as the record
and the briefs adequately present the issues and positions of the parties.
3 Although it was stipulated that the Employer's gross annual revenue is
sufficient to satisfy our jurisdictional standards for private nonprofit
universities , the location of the Employer within the District of Columbia
also provides us with jurisdiction on a plenary basis. M. S. Ginn & Company,
114 NLRB 112; The Westchester Corporation, 124 NLRB 194.
The Employer disputes the appropriateness of a
separate law school bargaining unit and further
argues, on the basis of University of New Haven, Inc.,
190 NLRB No. 102, that any such unit must nec-
essarily encompass all "regular part-time" as well
as full-time faculty members .5 In addition, Petitioner
would include the law school's head librarian and
exclude the assistant and associate deans, while the
Employer would exclude the librarian and include
the assistant and associate Deans. The parties are in
apparent agreement that the dean of the law school
should be excluded from the unit as a supervisor.
In Fordham, supra, we held that on the basis of the
record developed therein a bargaining unit limited to
the law school faculty was appropriate. We noted,
inter alia, that the law school at Fordham occupied
its own building on campus which was rarely used by
other members of the university community; that the
law school sought to comply with relatively stringent
accreditation and professional standards established
by the American Bar Association and the Associa-
tion of American Law Schools, as well as by various
state judiciaries; that the law school faculty mem-
bers, while participating in some non-law school
functions, nevertheless performed the vast majority
of their professional and administrative responsibili-
ties within the confines of the law school; that the
average compensation received by law school faculty
members was substantially in excess of that received
by their non-law school counterparts; and that to a
significant degree the law school, under the direction
of the dean, operated independently of the rest of the
University by maintaining its own academic calendar
and by establishing faculty committees with jurisdic-
tion over such areas as curriculum content, course
scheduling, recruitment, promotion and tenure of
faculty members, etc.
These observations about the Fordham Law
School and its relationship to the remainder of that
University prompted us to conclude that: (1) the
faculty of the law school constituted an identifiable
group of employees whose separate community of
interest was "not irrevocably submerged" in the
broader community of interest which they shared
with other faculty members, and (2) the operation of
the law school was "not so highly integrated" with
that of the remainder of the university as to compel a
4 The Employer contends that the Law Faculty Bargaining Committee is
not a labor organization . However, it is clear from the record-including
testimony of Petitioner 's secretary that the purpose of the Committee is to
bargain collectively with the Employer on behalf of unit employees-that
Petitioner meets the definition of "labor organization" as set forth in Sec.
2(5) of the Act.
5 The Employer's motion to dismiss the petition , based on Petitioner's
failure to include regular part-time faculty members in the unit description,
is hereby denied . Petitioner has stated in its brief to the Board that it is
prepared to participate in an election with respect to any unit found
appropriate in this proceeding.
201 NLRB No. 145
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finding that only an overall unit would be appropri-
ate.
Since we are of the view that the pertinent facts in
this case are substantially the same as those in
Fordham, we find a unit limited to the law faculty of
the Columbus School of Law of the Catholic
University of America to be appropriate for purposes
of collective bargaining.
The parties disagree as to the unit placement of
part-time faculty members and the law school's
head librarian , assistant dean, and associate dean.
Part - Time Faculty : The Employer would include in
the unit , and the Petitioner exclude , 31 part-time
faculty members who have been retained for the
1972-73 academic year to supplement the 21-mem-
ber full-time law faculty . In making these requests,
the parties raise two related , but nevertheless distinct,
questions : ( 1) which part-time law faculty members,
if any , shall be included in the unit , and (2) of those
part-time employees determined to be includable in
the unit , which shall be eligible to vote in a Board-
directed representation election.
In University of New Haven, Inc., supra, we held, in
non-law school context , that "regular" part-time
faculty members must be included in the same unit
as the full-time faculty , absent agreement of the
parties to exclude them . Thereafter, in University of
Detroit, 193 NLRB No. 95, we both specifically
applied the New Haven rule to a law school faculty
and enunciated a formula for determining which
part-time faculty members were "regular" part-time
employees . Under the Detroit formula, all part-time
faculty members, whose teaching load (measured in
terms of credit hours taught per semester) was at
least one-fourth that of the average teaching load of
their full-time counterparts , were "regular" part-time
employees.
Since we can perceive no reason in the instant
record for departing from the policies announced in
New Haven and Detroit, we shall include in the unit
hereinbefore found appropriate all "regular part-
time" law faculty members . However , in applying the
Detroit formula to the law school at Catholic
University , it will be necessary to calculate the
respective teaching loads (measured in terms of
credit hours taught per semester) of the full- and
part-time faculty members . In this regard , the law
school dean testified that on the average full-time
faculty members teach two courses per semester
while part-time faculty members teach only one; no
credit hour values were attached by the dean to these
averages . The assistant dean of the law school, on the
other hand , testified that while some full-time faculty
members may teach as many as 8 credit hours per
semester, most teach between 6 and 6-1/2 hours per
semester . Finally, an exhibit received into evidence at
the hearing indicates that the vast majority of courses
taught by part-time faculty members offer either 2 or
3 "semester hours" of credit.
On this record, we are unable to calculate a precise
average teaching load for the full-time faculty and
consequently are unable to compute the 4-to-1 ratio
required in applying the Detroit formula. If the
assistant dean's testimony to the effect that the full-
time faculty teaching load averages between 6 and
6-1/2 credit hours per semester is accurate, then it
would appear that virtually all of the part-time
faculty members have satisfied the one-fourth teach-
ing load requirement. If, on the other hand, the
average full-time teaching load exceeds 6 or 6-1/2
credit hours per semester, then certain part-time
faculty members may have to be excluded from the
unit on the grounds that they are not "regular part-
time" employees.
Having enunciated a method for determining
which part-time faculty members shall be included in
the unit, the second question which must be
answered is which of the individuals so included will
be eligible to vote in a Board-directed representation
election. This issue was recently raised and discussed
in a university setting in C. W. Post Center of Long
Island University, 198 NLRB No. 79.
In building on the Detroit formula, we stated in C.
W. Post that all part-time faculty members" (therein
referred to as "adjunct" professors) would be eligible
to vote who:
[S]igned . . . [an adjunct] contract in at least 2 of
the 3 consecutive academic years, inclusive of
that in which the election is directed, and actually
teach 3 or more credit hours6 in at least one
semester in each of 2 such years ... .
We see no reason why the C. W. Post formula may
not be applied in this case to determine voter
eligibility. However, in applying the formula to the
law school at Catholic University, it will be necessary
to make two minor modifications in its literal
requirements. First, the part-time faculty members at
Catholic University do not sign individual "adjunct"
contracts as was the case at C. W. Post; they do,
however, automatically receive written appointments
from the Employer for each semester which they
teach. Since it appears that these written appoint-
ments are intended to serve the same purpose, and
have the same legal effect, as the "adjunct" contracts
utilized at C. W. Post, we shall accept such written
appointments in lieu of the contracts referred to in
the C. W. Post decision.
Second, while the 3-credit-hour-per-semester figure
6 Although the opinion does not cite Detroit, this teaching load See C. W. Post Center of Long Island University , 189 NLRB No. 109.
constitutes one-fourth of the average teaching load of the full-time faculty.
THE CATHOLIC UNIVERSITY OF AMERICA 931
utilized in the C. W. Post formula constitutes one-
fourth of the average teaching load of the full-time
faculty at that institution, as indicated above this
may not be the case at Catholic University. There-
fore, in applying the C. W. Post formula to determine
voter eligibility in the instant case , it is our intention
that a credit hour figure representing one-fourth of
the average per semester teaching load of the full-
time law faculty, if other than 3 credit hours per
semester , be substituted therefor.
In sum , we find that all part-time faculty members
whose teaching load (measured in terms of credit
hours taught per semester) is at least one-fourth the
average teaching load of their full-time counterparts
shall be included in the bargaining unit. In addition,
all part-time faculty members who maintained this
teaching load pursuant to a written appointment in
at least one semester during any 2 of the last 3
consecutive academic years, inclusive of that in
which the election is directed, shall be eligible to
vote. If the parties, acting in accordance with the
guidelines described above, are unable to reach
agreement as to the voting eligibility of any individu-
al regular part-time faculty members, such individu-
als may vote subject to challenge.
Head Librarian: Petitioner would include, and the
Employer exclude, as a supervisor , the law school's
head librarian. In our view, the record demonstrates
not only that the head librarian lacks supervisory
status but also that his community of interest quite
clearly resides with the faculty; he will, therefore, be
included in the unit.
It is conceded that the librarian is a member of the
faculty. He holds the rank of assistant professor of
law, attends all faculty meetings, has the authority to
participate and vote in such meetings, and has been
active on faculty committees. In addition, he assists
and directs students in the research and preparation
of papers.
It is also conceded that the librarian does not
supervise any of the members of the bargaining unit.
As librarian, his only subordinates are the members
of the library staff-one full-time assistant librarian
and four student assistants . However, even with
regard to these individuals, the record discloses that
all decisions made by the librarian affecting their
employment status-including decisions relating to
hiring, firing, promoting, evaluating, etc.-are only
made after consultation with others, normally the
associate dean. In the single instance in which the
librarian recommended a discharge, his recommen-
dation, following consultation with the associate
dean, was not adopted.
Under these circumstances, we find that the head
librarian is not a supervisor and consequently will
include him in the unit.
Assistant Dean: Petitioner seeks to exclude the law
school 's assistant dean from the unit on the basis that
he: (1) is a supervisor and (2) lacks a community of
interest with his faculty colleagues. In our judgment,
neither of Petitioner's arguments is supported by the
record. Accordingly, we shall include the assistant
dean in the unit.
As with the head librarian, the assistant dean
enjoys full faculty status, attends faculty meetings,
sits on faculty committees, and has full voting
privileges. While the assistant dean's primary respon-
sibility lies in the area of recruitment and admission
of students, he teaches a 2-hour course in contracts
each semester, plus a summer session course in trial
techniques.
It was stipulated that the assistant dean is not a
supervisor vis-a-vis unit employees while performing
his normal responsibilities. The stipulation, however,
did not encompass situations in which the assistant
dean substitutes for the associate dean in the latter's
absence. In these instances , the assistant dean
testified that none of the decisions which he makes
requires the exercise of independent judgment.
In view of the above, it is apparent, and we so find,
that the assistant dean is not a supervisor; he does, in
fact, share a substantial community of interest with
the law school faculty and his inclusion in the unit is
therefore warranted.
Associate Dean: As with the assistant dean,
Petitioner would exclude the associate dean on the
grounds that he (1) is a supervisor and (2) lacks a
community of interest with unit employees. Since we
find no merit to Petitioner's claim in this regard, we
shall include the associate dean in the unit.
Although the primary responsibility of the associ-
ate dean lies in implementation of the law school's
academic program (for which he serves as chairman
of the faculty committee on academic policy), he also
carries a teaching load of some 2-1/2 hours per week
each semester. He enjoys full faculty status and
participates in faculty meetings. The associate dean
is compensated on an 11-month (as opposed to the
normal 9-month) basis but receives no extra compen-
sation solely on account of his associate dean status;
his recommendations regarding the hiring, firing,
promotion, etc. of faculty members carry no more
weight than the recommendations of his colleagues.
Although the associate dean is the ranking law
school official in the absence of the dean, the
associate dean has not been delegated authority to
exercise independent discretion while operating the
law school in the dean's absence. In the words of the
dean, the associate dean "[m ]ay sign some letter that
I dictated or left on the belt if I am away. I talk to
him or somebody in the office every day but if
something came up that required the formulation of
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy or some kind of judgment, I would expect him
to talk to me about it."
In view of the limited authority delegated to the
associate dean in the dean's absence, and in view of
his close association with the faculty, we find that he
is not a supervisor and he should be included in the
unit.
For the reasons stated above, we find that the
following unit is appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act:
All full-time and regular part -time members of the
faculty at the Columbus School of Law of the
Catholic University of America, including the head
librarian , assistant dean , and associate dean, but
excluding administrative and all other employees and
supervisors as defined by the Act.
[Direction of Election7 and Excelsior footnote
omitted from publication.]
I As the Petitioner' s original showing of interest was for a unit smaller Director for Region 5 of the Petitioner 's interest in the unit found
than the unit in which an election is being directed , the Direction of appropriate herein.
Election is subject to an administrative determination by the Regional