Columbia College

National Labor Relations Board - Board Decisions

Mar 31, 2006

346 N.L.R.B. 726 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 69
726
Columbia College and Illinois Education Association
(IEA). Case 13–RC–21249
March 31, 2006
DECISION AND DIRECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections to and determinative challenges in an election
held October 14, 2004, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agreement.
The tally of ballots shows 138 for and 158 against the
Union, with 60 challenged ballots.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and has adopted the hearing officer’s
findings1 and recommendations2 as modified.
We agree with the hearing officer’s recommendation
to overrule the Employer’s challenges to the ballots of
employees Cory Plazak, Cynthia Martinez, Lott Hill,
Lisa Butler, Emily Reible, and Matthew Green. The
Employer failed to adduce sufficient evidence to prove
that these employees are either excluded supervisors or
ineligible managerial employees.3 Further, as explained
below, we agree with the hearing officer’s conclusion
that the Employer’s tutors are not excluded from the unit
by virtue of the parties’ Stipulated Election Agreement.
While we do not adopt the hearing officer’s finding that
part-time tutors who also hold part-time teaching posi-
tions are not dual-function employees, we find that they
are eligible to vote as dual-function employees with a
substantial interest in the working conditions of the unit.

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
2 We find it unnecessary at this time to pass on the hearing officer’s
recommendation to sustain the Union’s Objection 1 alleging that the
Employer failed to comply with the Excelsior requirement. We shall
direct the Regional Director to open and count the challenged ballots
consistent with our findings here. This will alter the tally of ballots
and, possibly, moot Objection 1 if the Union receives a majority of
ballots cast. Alternatively, Objection 1 could become unsustainable if
the Employer substantially increases its margin of victory. If, however,
the revised tally of ballots shows that the Union has not received a
majority of ballots cast, the Regional Director immediately shall trans-
fer the case back to the Board for further proceedings. See Laneco
Construction Systems, 339 NLRB 1048, 1051 (2003).
3 No party excepted to the hearing officer’s remaining supervisory
and managerial findings.
Facts
The Employer is a private university located in Chi-
cago, Illinois, enrolling approximately 10,000 under-
graduate and graduate students. The Union seeks to rep-
resent a unit of full-time and regular part-time staff em-
ployees working in 72 different academic and adminis-
trative departments. Since March 1998, the Union has
represented a unit of the Employer’s part-time faculty.
The Board conducted an election on October 14, 2004,
pursuant to the parties’ Stipulated Election Agreement.4
Of the approximately 422 eligible voters, 138 cast ballots
in favor of the Union and 158 cast ballots against repre-
sentation. There were 60 challenged ballots, a number
sufficient to affect the results of the election.
The Employer argues that all of the challenged voters
are ineligible. The Employer’s arguments supporting the
ineligibility of those casting challenged ballots fall into
three general categories: (1) the individuals are ineligible
tutors, (2) the employees are either managerial or super-
visors, and (3) the employees are ineligible for various
specific reasons. On October 21, 2004, the Petitioner
filed four timely objections.
The hearing officer recommended that 42 of the 60
ballot challenges be overruled and recommended sustain-
ing Objection 1, which alleged that the Employer failed
to supply a complete Excelsior list. The hearing officer
recommended overruling Objections 2, 3, and 4.5
Much of the dispute in this matter revolves around ap-
proximately 24 nonstudent tutors in the English depart-
ment’s writing center and approximately 12 nonstudent
tutors in the math and science department’s learning cen-
ter. All of the learning center tutors and most of the writ-
ing center tutors also hold part-time faculty positions in
their respective departments. Eleven writing center tu-
tors and 5 learning center tutors voted in the election but
were challenged because their names did not appear on
the Excelsior list.6
All of the tutors work a part-time schedule in their re-
spective centers and are hired on a semester-by-semester
basis. However, as a matter of practice, the Employer
has rehired all of the tutors for each following semester if

4 The stipulated bargaining unit consists of “all full-time and regular
part-time staff employees,” excluding, in relevant part, “all persons
who are primarily students,” “music tutors,” “independently contracted
tutors,” and “faculty.”
5 No party excepted to the hearing officer’s recommendation to over-
rule Objections 2, 3, and 4.
6 Erin Hellweg, Tameka Hemmons, and Sarah Willis are graduate or
specialty writing center tutors who do not hold part-time faculty posi-
tions and voted without challenge because they were included on the
eligibility list. Of the remaining writing center tutors, 11 voted under
challenge and 10 did not vote and were not included on the eligibility
list.
COLUMBIA COLLEGE 727
they wish to continue tutoring. Writing center tutors are
supervised by a nonfaculty staff supervisor while the
learning center tutors are directed by a part-time faculty
member who also holds a tutoring position and who is in
turn supervised by the chair of the math and science de-
partment.7
Employees in both centers apply separately to work as
tutors. Their tutoring work is not a requirement of their
part-time faculty positions. Tutoring work is compen-
sated at a much lower rate than teaching. The tutors are
paid between $12 and $13 an hour, while teachers are
paid between $2400 and $4300 for three-credit, one-
semester courses. Tutors work regularly scheduled hours
in their respective centers and receive two separate pay-
checks—one for teaching and one for tutoring. Tutors in
the learning center may occasionally see students from
their classes during their tutoring hours while tutors in
the writing center do not tutor their own students.
Hearing Officer’s Findings and the
Employer’s Exceptions
The hearing officer recommended, in part, that the
challenges to the tutors’ ballots be overruled. The hear-
ing officer found that the tutors did not fall within the
Stipulated Election Agreement’s exclusion of “independ-
ently contracted tutors” from the unit. In so finding, the
hearing officer applied the Board’s independent contrac-
tor test and determined that the learning center and writ-
ing center tutors are not independent contractors within
the meaning of Section 2(3) of the Act, but rather are
statutory employees of the college. Further, the hearing
officer found that the tutors have a community of interest
with the other staff employees. This finding was based
on similar job functions, wage rates, lack of benefits, and
a lack of evidence in the record that the tutors do not
have a community of interest with the other staff em-
ployees. Moreover, the hearing officer found that part-
time faculty members holding part-time tutoring posi-
tions are not dual-function employees because they have
separate and distinct employment relationships for each
position. He concluded that, as tutors, they have a com-
munity of interest only with the part-time staff employ-
ees. However, to the extent that these tutors are consid-
ered to be dual-function employees, the hearing officer
found that they have a sufficient community of interest
with the other staff employees to permit their inclusion in
the unit.
In its exceptions, the Employer argues that the tutors
are not eligible to vote because they are excluded from

7 No party excepted to the hearing officer’s finding that Nathan Lin-
shield, who is a part-time faculty member and part-time tutor, is not a
statutory supervisor of the learning center tutors.
the unit under the “faculty” and “independently con-
tracted tutors” exclusions or because they are dual-
function employees covered by a current collective-
bargaining agreement and they do not spend at least 50
percent of their time performing tutoring work. The Em-
ployer also argues that the hearing officer erred in failing
to find that six individuals are either supervisors or
managerial employees, and that three employees are in-
eligible to vote based on their lack of work as of the eli-
gibility date or due to their student status. The Employer
further argues that it substantially complied with the Ex-
celsior requirements and that a new election is not war-
ranted.
As noted above, we find merit only in the Employer’s
argument that employees holding both part-time faculty
and part-time tutoring positions are dual-function em-
ployees. Nonetheless, we find that they are eligible to
vote because they are not specifically excluded from the
stipulated unit and because they have a substantial com-
munity of interest with the other employees in the unit so
as to permit their inclusion under the Board’s dual-
function employee analysis.
Analysis
A. Application of the Stipulated Election Agreement
In adopting the hearing officer’s recommendation that
the challenged tutors are not covered by the parties’
stipulation that “independently contracted tutors” and
“faculty” be excluded from the unit, we note that the
hearing officer’s analysis is consistent with Caesar’s
Tahoe, 337 NLRB 1096, 1097 (2002). Under Caesar’s
Tahoe, the Board applies a three-part test to determine if
a challenged voter is properly included in or excluded
from a stipulated bargaining unit. First, the Board must
determine whether the stipulation is ambiguous. If the
objective intent of the parties is expressed in clear and
unambiguous terms, the Board will simply enforce the
agreement. Second, if the stipulation is ambiguous the
Board will seek to determine the parties’ intent through
normal contract interpretation, including the use of ex-
trinsic evidence. Third, if the parties’ intent still cannot
be discerned, the Board will determine the proper bar-
gaining unit by employing its traditional community-of-
interest analysis.
We agree with the hearing officer (1) that the “inde-
pendently contracted tutors” exclusion does not apply to
the challenged tutors and (2) that the “faculty” exclusion
does not apply to individuals holding both a faculty posi-
tion and an included position.
1. Applying the Caesar’s Tahoe test here, we note that
the term “independently contracted tutors” is open to
differing reasonable interpretations, which cannot be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD728
resolved by reference to the language of the stipulated
election agreement alone. The exclusion could reasona-
bly be read to apply to tutors who work under separate
and independent semester-long agreements (as argued by
the Employer); or instead to tutors who meet the Board’s
standards for independent-contractor status. Thus, the
hearing officer properly looked next to the second prong
of Caesar’s Tahoe to resolve the issue.
Under this second prong, we infer that the parties in-
tended to give the words “independently contracted” the
meaning used by the Board and the courts in related con-
texts. Under general principles of contract interpretation,
“technical terms and words of art are given their techni-
cal meaning unless the context or usage which is appli-
cable indicates a different meaning.” Restatement (First)
of Contracts § 235(b). Here, the hearing officer correctly
found that the parties intended to exclude those who met
the test for independent-contractor status, as defined by
both the Board and the courts. The record contains no
evidence that the parties intended the term “independ-
ently contracted” to be given anything other than its
technical meaning. Having found that the tutors in ques-
tion did not fall into the classification of “independently
contracted tutors” as interpreted, the hearing officer cor-
rectly determined their eligibility without resorting to the
third prong, viz. the Board’s community of interest
analysis.8
2. The Stipulated Election Agreement’s exclusion of
“faculty” is also ambiguous. The exclusion of faculty
reasonably could be read to apply to any faculty member,
irrespective of whether that faculty member is also a
part-time employee, i.e., a tutor. Under this view, the
tutors here would be excluded. Alternatively, the exclu-
sion could reasonably be read to apply only to faculty
members who are not part-time staff employees. In sup-
port of the latter view, we note that the unit includes part-
time staff employees, and the tutors are part-time staff
employees. Because the stipulation is ambiguous, we
look next for other evidence of the parties’ intentions.
The record contains no evidence of the parties’ intent
in crafting the exclusion, and general principles of con-
tract interpretation do not resolve the issue. And, there is
nothing in our law which would suggest than an em-
ployee who holds two positions—one included in a stipu-
lated unit and one excluded from that unit—must as a
matter of law be excluded from the unit. See Alpha
School Bus Co., 287 NLRB 698 (1987) (finding that em-

8 Member Schaumber agrees that the phrase “independently con-
tracted tutors” is ambiguous. He further agrees that tutors are properly
includable in the unit, but based solely on the hearing officer’s alterna-
tive finding that the tutors share a community of interest with the other
petitioned-for staff employees.
ployee who worked as both an excluded mechanic and an
included bus driver was eligible to vote).
Thus, we turn to the third prong. Based on the Board’s
community-of-interest test we find that employees hold-
ing both an otherwise eligible staff position and a part-
time faculty position are properly included in the unit.
When working their nonfaculty positions, these employ-
ees are paid hourly wages comparable to other staff em-
ployees, receive no benefits (just as the other staff em-
ployees receive none), work specific and limited sched-
ules like other staff employees, work under separate su-
pervision from faculty, and perform nonclassroom teach-
ing functions. We recognize that these dual-function
employees hold higher degrees than most staff employ-
ees, sometimes work with students who they teach, and
sometimes work with students to fulfill requirements of
their academic courses. However, these differences do
not outweigh the factors showing a community of inter-
est with the staff employees. While we agree with the
Employer that these individuals have a community of
interest with the faculty while they are working in their
faculty positions, there is no evidence in the record to
suggest that this community of interest is so overwhelm-
ing that it would negate their substantial community of
interest with the staff employees.9
B. Tutors as Eligible Dua-Function Employees
While we adopt the hearing officer’s ultimate conclu-
sion that the tutors are eligible to vote, we do not rely on
his conclusion that the tutors holding part-time faculty
positions are not dual-function employees. The Board
has generally considered an employee with job responsi-
bilities encompassing more than one position to be a
dual-function employee, and has done so without regard
to the seemingly separate nature of the employment rela-
tionships giving rise to the multiple job functions. See
Marine Petroleum Co., 238 NLRB 931, 932 (1978)
(finding it “apparent” that an employee who worked full
time as an accountant and part time as a dispatcher with
different terms and conditions of employment, salaries,
and benefits was a dual-function employee); Alpha
School Bus, supra, 287 NLRB at 699 (finding dual-

9 Member Schaumber finds that the Stipulated Election Agreement’s
exclusion of “faculty” is plain on its face and not ambiguous. With
respect to stipulated election agreements, the Board expects that “the
parties are knowledgeable as to the employees’ job title, and intend
their description in the stipulation to apply to those job titles.”
Kim/Lou, Inc., 337 NLRB 191 (2001) (citation and internal quotations
omitted). Here, the stipulation excluded the title of “faculty,” without
reservation. Had the parties intended to exclude all faculty members
except those who also are working in an otherwise eligible staff posi-
tion, they plainly could have said so. He therefore finds that faculty
should be excluded from the staff unit, including faculty members who
may also hold tutor positions.
COLUMBIA COLLEGE 729
function status where an employee working as a bus
driver and as a mechanic for the employer: wore different
uniforms for each position, had different supervisors for
each position, punched in with different timecards, and
received different pay and benefits). Accordingly, the
touchstone of dual-function employee status is the fact
that a single employee performs multiple job functions
covered by one or more of the employer’s job classifica-
tions. Here, the tutors who also hold part-time faculty
positions fall squarely within the scope of the Board’s
traditional definition of dual-function employees.
While we disagree with the hearing officer’s recom-
mendation that the tutors are not dual-function employ-
ees, we do not disagree with his conclusion that they are
eligible to vote in the stipulated unit. The unit placement
of dual-function employees is determined by a variant of
the Board’s traditional community-of-interest test. Berea
Publishing Co., 140 NLRB 516, 519 (1963). The Board
has long held that employees who perform more than one
function for the same employer may vote, even though
they spend less than a majority of their time on unit
work, if they regularly perform duties similar to those
performed by unit members for sufficient periods of time
to demonstrate that they have a substantial interest in
working conditions in the unit. Id. at 518–519.
Under this definition, we agree with the hearing offi-
cer’s determination that the dual-function tutors have a
community of interest with the employees in the stipu-
lated unit. Like the computer lab assistants who aid stu-
dents with computer problems and who are included in
the unit, the tutors assist students outside of class with
math, science, and writing problems. While working in
their tutoring positions, the employees are paid an hourly
wage similar to that of other staff employees. This wage
is separate from their teaching compensation. The tutors
receive no other benefits for their tutoring work. Further,
the tutors work a regular schedule and have tutored se-
mester-after-semester for years.10 As found by the hear-

10 In its exceptions, the Employer argues that Susan Miller should be
excluded from the unit because her 3 hours of service a week as a tutor
is insufficient to make her a regular part-time employee under Davison-
Paxson Co., 185 NLRB 21 (1971) (noting that a minimum of 4 hours
work per week in the preceding quarter is necessary for an employee to
be considered a regular part-time employee). However, Davison-
Paxson’s 4-hour requirement does not apply to dual-function employ-
ees. See Syracuse University, 325 NLRB 162, 163 (1997). Miller has
tutored every Monday for 3 hours during the last 5 years. While the
actual hours spent tutoring lends support to the argument that she lacks
a substantial community of interest with the employees in the stipulated
unit, the fact that she has performed such work on a regular basis for
over 5 years demonstrates that she is an eligible dual-function em-
ployee. Such regularity of unit work distinguishes this case from ones
in which the Board excluded employees who spent an insufficient
amount of time performing unit work. See Davis Transport, Inc., 169
ing officer, the Employer, as the party seeking to exclude
the tutors, has failed to present sufficient evidence to
prove that the tutors do not have a community of interest
with the staff unit. See Regency Service Carts, Inc., 325
NLRB 617, 627 (1998) (citing Golden Fan Inn, 281
NLRB 226, 230 fn. 24 (1986)) (“party seeking to exclude
an individual from voting has the burden of establishing
that the individual is, in fact, ineligible to vote”).11
The Employer relies on Otasco, Inc., 278 NLRB 376
(1986), to support its argument that the current collec-
tive-bargaining agreement covering the part-time faculty
bars the dual-function tutors’ inclusion in the stipulated
staff unit. Such reliance is misplaced. In Otasco, the
Board found that a current collective-bargaining agree-
ment covering the employer’s “local drivers” barred the
inclusion of the dual-function local/over-the-road drivers
in a separate unit of “over-the-road drivers.” Impor-
tantly, the petitioned-for unit sought to include not only
the classification of “over-the-road drivers” but also that
of “local drivers”—a classification that was explicitly
included under a current collective-bargaining agree-
ment. The Board noted that the employer argued that the
current collective-bargaining agreement barred the “in-
clusion of the local truck drivers classification within the
over-the-road truck drivers.” Id. at 376 (emphasis
added).
Here, the stipulated bargaining unit does not include
any classifications covered by the existing part-time fac-
ulty collective-bargaining agreement. To the contrary,
the stipulated bargaining unit excludes faculty positions
which are covered by that agreement. Further, the part-
time faculty/tutors here are not akin to the dual-function
drivers in Otasco. There, the employees’ local truckdriv-

NLRB 557, 562–563 (1968), enfd. 433 F.2d 363 (6th Cir. 1970) (em-
ployees performing apparently unscheduled driving work for less than
3 percent of their working time not eligible to vote in drivers unit); Mc-
Mor-Han Trucking, Inc., 166 NLRB 700, 702 (1967) (employee who
primarily worked as a mechanic excluded from unit of drivers where he
drove a truck on 20 days during the year with no apparent consistent
schedule or regularity).
11 Likewise the Employer has failed to present sufficient evidence
that Ryan Kulefsky was not performing tutoring work as of the eligibil-
ity date. Arlene Green, the director of the writing center, testified that
Kulefsky was “hired and then decided that he couldn’t tutor because he
had been given teaching responsibility.” Based on this testimony, the
Employer argues that it is “undisputed that Kulefsky did not work as a
tutor in the fall of 2004.” Contrary to the Employer’s interpretation,
Ms. Green did not state, and the record contains no evidence, regarding
when Kulefsky decided that he could no longer tutor. While it may be
possible that he reached such a decision before the eligibility cutoff and
the date of the election, it is also possible that he made this decision
sometime thereafter. The record simply indicates that Kulefsky was no
longer tutoring as of December 21, 2004, the date of the hearing.
Without more specific evidence, the Employer has failed to meet its
burden of proving that Kulefsky is ineligible to vote.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD730
ing job included responsibilities that were also included
in the over-the-road position. Here, the dual-function
tutors’ job duties as part-time faculty are separate and
independent from their duties as tutors. Instead of hold-
ing a single, integrated job with responsibilities spanning
multiple classifications and potentially multiple collec-
tive-bargaining agreements, their duties as faculty and as
tutors are easily contained within their separate and inde-
pendent positions.12 Accordingly, the part-time faculty
collective-bargaining agreement does not bar the inclu-

12 Likewise, the Employer’s reliance on Bentson Contracting Co. v.
NLRB, 941 F.2d 1262 (D.C. Cir. 1991), is misplaced. In Bentson Con-
tracting, the court found that the Board improperly placed “combina-
tion employees” in both a unit of drivers and a unit of laborers. The
court noted that two unions “simply cannot be the ‘exclusive’ bargain-
ing representative of the same employees with respect to the same
conditions of employment.” Id. at 1266. The court’s concern centered
on the fact that the combination employees would be covered under
two contracts during the same working hours and would be forced to
join two unions and pay dues twice in order to maintain their jobs.
Here, the same concerns are not raised. The individuals in question do
not hold a single integrated position. The coverage of the two collec-
tive-bargaining agreements would not extend to the same working
hours and would not cover the same working conditions. In essence,
these employees hold two separate jobs. If chosen, the Union will be
their representative in two separate units. There is no rational reason to
deny the Union the opportunity to receive dues for each separate repre-
sentation. In addition, it is entirely speculative whether the Union will
be selected, whether it will secure a union-security clause, and whether
it will be unwilling to give these employees a partial “pass” on their
union-security obligation.
sion of part-time faculty employees holding part-time
tutoring positions in the petitioned-for staff unit.
DIRECTION
The Regional Director for Region 13 shall, within 14
days from the date of this Decision and Direction open
and count the ballots of employees Jessica Alverson,
Steven Bithos, Erica Breyer, Lisa Butler, Shayna Con-
nelly, Jane DeGrado, Bill Drendel, Shannon Epplett,
Jennifer Friedrich, Sallie Gordon, Matthew Green, Jo-
seph Haberfeld, Lott Hill, Mike Humphreys, Peter
Insley, Ryan Kulefsky, Daniel LaCloche, Eric Laschin-
ski, Nathan Linshield, David Maina, Edwin H. Manning,
Cynthia Martinez, Dirk Matthews, Sherlene McCoy,
Susan Miller, John J. Murray, Christine Pfeiffer, Corey
Plazak, Maeve Price, Emily Reible, Nancy Rinehart,
Dian Ruben, Greg Sato, Shawn Sheehy, Rachel Slavick,
Damon Smith, Kim Sommario, Benjamin Steger, John
Tooke, Brent Walker, Ann Weins, and Greg Weiss at a
time and place set by him. The Regional Director shall
then prepare and serve upon the parties a revised tally of
ballots. If the revised tally of ballots shows that the Un-
ion has received a majority of the valid ballots cast, the
Union’s Objection 1 will be moot and the Regional Di-
rector shall issue a certification of representative. If,
however, the revised tally of ballots shows that the Union
has not received a majority of the ballots cast, then the
Regional Director immediately shall transfer the case
back to the Board for further proceedings.