Goucher College

National Labor Relations Board - Board Decisions

Aug 11, 2016

364 NLRB No. 71 (N.L.R.B. 2016)

364 NLRB No. 71
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Goucher College and Service Employees Internation-
al Union, Local 500, Petitioner. Case 05–RC–
139478
August 11, 2016
DECISION AND DIRECTION
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
The National Labor Relations Board, by a three-
member panel, has considered determinative challenges
to ballots cast in a mail-ballot election that commenced
November 25, 2014, and the hearing officer’s report rec-
ommending disposition of them.1 The election was con-
ducted pursuant to a Stipulated Election Agreement. The
initial tally of ballots showed 33 ballots for and 33
against the Petitioner, with 12 challenged ballots, a num-
ber sufficient to affect the results. Five of the challenged
ballots remain before the Board for disposition.2
The Board has reviewed the record in light of the ex-
ceptions and briefs and has adopted the hearing officer’s
findings and recommendations only to the extent con-
sistent with this Decision and Direction.
Background
The parties stipulated to the following bargaining unit:
All full-time, part-time and half-time, non-tenure and
non-tenure track faculty employed by Goucher College
to teach at least one credit bearing classes, lessons or
labs (including but not limited to Post-Doctoral Teach-
ing Fellows) . . . but excluding all graduate and post
graduate faculty and teaching fellows, all faculty in the
Welch Graduate Studies Center, all tenure and tenure
track faculty, all other employees whether or not they
have teaching responsibilities, including but not limited
to program directors, department chairs, graduate stu-
dents, teaching associates, teaching assistants, librari-
ans, registrars, deans, provosts, administrators, coaches,
office clerical employees, managers, confidential em-
ployees, guards and supervisors as defined by the Act.

1 Unchallenged ballots were opened and counted on December 9,
2014.
2 At the outset of the hearing, the Employer withdrew its challenges
to the ballots of employees Chelsea Schields and Maureen Winter. In
the absence of exceptions, we adopt the hearing officer’s recommenda-
tions to sustain the challenges to the ballots of employees Sinan
Ozdemir and Michelle Prince and overrule the challenges to the ballots
of employees Esther Gibbs, Carol Mills, and Barbara Roswell.
The parties further stipulated that employees in the unit em-
ployed during the monthly payroll period ending October
24, 2014, were eligible to vote. It is uncontested by the
parties that the challenged voters were non-tenure track
faculty members, including a Post-Doctoral Teaching Fel-
low, and were employed on the payroll eligibility date. It is
also uncontested that all non-tenure track faculty are em-
ployed on short-term contracts of one academic year or less.
The hearing officer analyzed the ballot challenges un-
der the Board’s three-prong Caesars Tahoe test for re-
solving determinative challenged ballots in cases involv-
ing stipulated bargaining units. Caesars Tahoe, 337
NLRB 1096, 1097 (2002).3 Applying the first prong of
Caesars Tahoe, the hearing officer recommended over-
ruling the challenge to post-Doctoral Teaching Fellow
Madeleine Fairbairn’s ballot because the parties unam-
biguously included her specific classification in the
stipulated unit. However, the hearing officer found the
stipulation ambiguous as to the inclusion or exclusion of
visiting or replacement faculty, including the four re-
maining challenged voters: Joseph Briggs, Jeffrey Dowd,
Daniel Kimball, and Jay Thompson. Evaluating these
four challenged ballots under the second prong of Cae-
sars Tahoe, the hearing officer concluded that the par-
ties’ intentions were “unclear” as to whether they were to
be included in or excluded from the unit. The hearing
officer then analyzed the challenges to these four ballots
under the third prong of Caesars Tahoe and determined
that all four voters should be included in the unit on
community-of-interest grounds.
The Employer argues that all five employees were vis-
iting faculty members or otherwise temporary employees
and lacked a community of interest with the other faculty
members in the stipulated bargaining unit. Specifically
as to Fairbairn, the Employer challenges the hearing of-
ficer’s conclusion that the inclusion of “Post-Doctoral
Teaching Fellows” in the stipulated unit ends the inquiry
as to her. Moreover, the Employer argues that the inclu-
sion of non-tenure track faculty in the unit “does not
mean that any individual who is a non-tenure track facul-
ty automatically is eligible to vote.”
Discussion
The Board’s longstanding policy is to permit “parties
to stipulate to the appropriateness of the unit, and to var-
ious inclusions and exclusions, if the agreement does not
violate any express statutory provisions or established

3 Under Caesars Tahoe, the Board first determines whether the stip-
ulation is ambiguous. If not, the Board enforces the stipulation. If it is
ambiguous, the Board seeks to determine the parties’ intent through
standard methods of contract interpretation. If the intent cannot be
discerned, the Board determines the bargaining unit by employing its
community-of-interest test. 337 NLRB at 1097.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Board policies.” White Cloud Products, 214 NLRB 516,
517 (1974). We agree with the hearing officer that the
parties unambiguously included Fairbairn’s specific clas-
sification, Post-Doctoral Teaching Fellow, in the stipu-
lated unit and that she was eligible to vote.4 Unlike the
hearing officer, we find that the stipulated election
agreement unambiguously includes all non-tenure track
faculty members, including Briggs, Dowd, Kimball, and
Thompson.5 The parties could have still intended to ex-
clude Briggs, Dowd, Kimball, and Thompson under the
Board’s policy of excluding temporary employees who
lack a sufficient community of interest with unit employ-
ees. However, in the circumstances here, we agree with
the hearing officer that the Employer failed to show that
Briggs, Dowd, Kimball, and Thompson were temporary
employees. Thus, they are also eligible to vote.6
The agreement unambiguously includes all part-time
“non-tenure and non-tenure track faculty employed by
Goucher College.” As stated above, the Employer does

4 We find it unnecessary to pass on whether Fairbairn is a temporary
employee. The parties clearly intended to include Fairbairn in the
stipulated unit. The practice of excluding temporary employees from a
unit recognizes that, as a general rule, they are unlikely to share a
community of interest with the rest of the unit. Marian Medical Cen-
ter, 339 NLRB 127, 128 (2003). However, “a stipulated inclusion or
exclusion which may not coincide with a determination which the
Board would make in a nonstipulated unit case on a ‘community of
interest’ basis is not a violation of Board policy such as would justify
overriding the stipulation.” White Cloud Products, 214 NLRB at 517.
Hence, even if Fairbairn was a temporary employee, there is no justifi-
cation under Board law to override the parties’ explicit stipulation to
include her in the unit.
5 Our concurring colleague contends that the stipulation is ambigu-
ous as to whether Briggs and Thompson, whose appointment letters
refer to their position as “lecturer,” are non-tenure track faculty mem-
bers that the parties clearly intended to include in the unit. However, in
describing their position, the appointment letters state that Briggs and
Thompson will each teach two classes and also refers to them as “part-
time faculty member[s].” In light of this evidence, we think the stipula-
tion, which provides for the inclusion of all part-time, non-tenure track
faculty members, unambiguously includes their position.
6 Unlike with Fairbairn, there is no evidence that the parties specifi-
cally intended to include Briggs, Dowd, Kimball, and Thompson in the
stipulated unit. The parties only stipulated to including their classifica-
tion: all non-tenure track faculty members. Although Briggs, Dowd,
Kimball, and Thompson unambiguously fall under that classification,
the Employer indisputably has other non-tenure track faculty members
included in the unit who are not temporary employees. Hence, in disa-
greement with our concurring colleague’s application of Caesars Ta-
hoe, 337 NLRB at 1097, we find that the parties’ intent is not clear
from the stipulation, which does not specify whether Briggs, Dowd,
Kimball, and Thompson, if they are temporary employees, should be
included in the stipulated unit. This is in contrast to McFarling Foods,
Inc., 336 NLRB 1140, 1140 (2001), cited by our colleague, where the
Board found that the parties specifically intended to include the chal-
lenged voters in the stipulated unit. Accordingly, the stipulation must
be read against a backdrop of established Board policies, one of which
is the exclusion of temporary employees who lack a community of
interest with the unit employees.
not dispute that the challenged voters are non-tenure
track faculty members. The only issue the Employer
raises is whether visiting or replacement non-tenure track
faculty members were ineligible to vote because of their
alleged temporary employee status. As the party assert-
ing ineligibility, the Employer bears the burden of show-
ing that the challenged voters were ineligible to vote.
See Sweetener Supply Corp., 349 NLRB 1122, 1122
(2007). It has not met that burden.
In an academic setting, terminal contract faculty mem-
bers who are not being rehired after the expiration of
their current contracts share a community of interest dur-
ing their employment with, and are properly included in,
an overall faculty bargaining unit. See Manhattan Col-
lege, 195 NLRB 65, 66 (1972); see also University of
Vermont and State Agricultural College, 223 NLRB 423,
427 (1976) (reaffirming the Board’s policy of including
terminal contract employees in an overall faculty bar-
gaining unit); Rensselaer Polytechnic Institute, 218
NLRB 1435, 1437 (1975) (“[T]he Board has uniformly
included [terminal contract faculty] in faculty bargaining
units since, while their employment continues, they have
a substantial community of interest with their col-
leagues.”).
Like the terminal contract faculty members in these
cases, the visiting or replacement faculty members here,
who may expect their employment to end on a fixed date,
share a community of interest with the overall unit of
other non-tenure and non-tenure track faculty members
during the term of their employment. In fact, the com-
munity of interest among the faculty members in this
case is stronger than in Manhattan College: as of the
payroll eligibility date, the Employer here had not told
several of the faculty members whose eligibility it con-
tests whether or not their contracts would be renewed.
Until their contracts expire, these visiting or replacement
faculty members continue to share an interest in terms
and conditions of employment with other faculty mem-
bers in the bargaining unit. See Fordham University,
214 NLRB 971, 975 (1974). Accordingly, we find that
the Employer failed to establish that Briggs, Dowd,
Kimball, and Thompson should be excluded from the
unit as temporary employees who lack a community of
interest with the other non-tenure and non-tenure track
faculty members in the stipulated bargaining unit.7

7 In Goddard College, 216 NLRB 457, 458 (1975), the Board found
that the visiting faculty members lacked a community of interest with a
unit of full-time and part-time faculty, because the visiting employees’
work was of a temporary nature and they had no reasonable expectation
of reappointment. Here, as in Manhattan College and its progeny, we
find that the employees at issue share a community of interest with
other employees in the unit during their employment that is more sig-
nificant than whether or not they have a reasonable expectation of
GOUCHER COLLEGE 3
Conclusion
It IS THEREFORE DIRECTED that the Regional Director
for Region 5 shall, within 14 days from the date of this
Decision and Direction, open and count the ballots of
Joseph Briggs, Jeffrey Dowd, Madeleine Fairbairn, Es-
ther Gibbs, Daniel Kimball, Carol Mills, Barbara Ro-
swell, Chelsea Schields, Jay Thompson, and Maureen
Winter. The Regional Director shall then serve on the
parties a revised tally of ballots and issue the appropriate
certification.
Dated, Washington, D.C. August 11, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, concurring.
I agree with my colleagues that the ballots of Joseph
Briggs, Jeffrey Dowd, Madeleine Fairbairn, Daniel Kim-
ball, and Jay Thompson should be opened and counted.
However, I take a different path in reaching this result.
The election was conducted pursuant to a stipulated elec-
tion agreement. The purpose of stipulated election
agreements is to streamline the election process by giv-
ing effect to the parties’ intent regarding the inclusion
and exclusion of voters. Here, review of the stipulated
election agreement and extrinsic evidence clearly indi-
cates the parties’ intent to include these five voters in the
unit, and I would give effect to this intent without reach-
ing a community-of-interest analysis, including the em-
ployees’ alleged temporary status.
The parties stipulated to a bargaining unit of “[a]ll full-
time, part-time and half-time, non-tenure and non-tenure
track faculty employed by Goucher College to teach at
least one credit bearing classes, lessons or labs (including
but not limited to Post-Doctoral Teaching Fellows) . . . .”
It is uncontested by the parties that the challenged voters
were non-tenure track faculty members, including a Post-

reappointment. Nonetheless, we note that the Employer in this case did
not show that Briggs, Dowd, Kimball, and Thompson lacked a reason-
able expectation of continued employment. The Employer had person-
ally informed some of them that their contracts might be renewed and
had previously renewed other visiting or replacement faculty members’
contracts.
Doctoral Teaching Fellow, and were employed on the
payroll eligibility date.
The Board gives effect to unambiguous stipulations to
secure “the speedy resolution of questions concerning
representation.” Tribune Co., 190 NLRB 398, 398
(1971). Accordingly, “[t]he Board has a longstanding
policy of permitting parties to enter into stipulations re-
garding appropriate bargaining units.” Northwest Com-
munity Hospital, 331 NLRB 307, 307 (2000). Pursuant
to this longstanding policy, in a stipulated unit case “‘the
Board’s function is to ascertain the parties’ intent with
regard to the disputed employee and then to determine
whether such intent is inconsistent with any statutory
provision or established Board policy.’” White Cloud
Products, 214 NLRB 516, 516 (1974) (quoting Tribune
Co., above). “If the objective intent of the parties is ex-
pressed in clear and unambiguous terms in the stipula-
tion, then the Board will hold the parties to their agree-
ment.” Northwest Community Hospital, above. Were
the Board “to review [the parties’] stipulation de novo,
and make [its] own findings, [it] would be undercutting
the very agreement which served as the basis for con-
ducting the election.” Tribune Co., above.
Although a stipulation that is “inconsistent with any
statutory provision or established Board policy” will not
be enforced, White Cloud Products, 214 NLRB at 516,
the Board has stated that “a stipulated inclusion or exclu-
sion which may not coincide with a determination which
the Board would make in a nonstipulated-unit case on a
‘community of interest’ basis is not a violation of Board
policy such as would justify overriding the stipulation,”
id. at 517. In this regard, in both Tribune Co. and White
Cloud Products the Board cited with approval the Se-
cond Circuit’s reasoning in Tidewater Oil Co v. NLRB,
358 F.2d 363 (2d Cir. 1966):
We view community of interest as a doctrine useful in
drawing the borders of an appropriate bargaining unit, a
function well within the discretion of the Board. But
we do not conclude that the doctrine remains as an es-
tablished Board policy sufficient to override the parties’
intent when the Board, in the interests of furthering
consent elections, allows the parties to fix the unit.
358 F.2d at 366. In sum, so long as a stipulation is not “in-
consistent with any statutory provision or established Board
policy,” White Cloud Products, above at 516, it “is . . . con-
clusive regarding challenges that are contrary to the stipula-
tion,” Gala Food Processing, 310 NLRB 1193, 1194
(1993), even if the Board would reach a different result
were it to apply a community-of-interest analysis, White
Cloud Products, above at 517.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
The Board reiterated its approach to resolving deter-
minative challenged ballots in stipulated unit elections in
Caesars Tahoe, 337 NLRB at 1096. The Board cited
with approval the standard set forth by the United States
Court of Appeals for the D.C. Circuit in Associated Milk
Producers v. NLRB, 193 F.3d 539 (D.C. Cir. 1999). Ob-
serving that this standard “embodied” the Board’s
longstanding approach in stipulated unit cases, the Board
adopted the D.C. Circuit’s standard “as a clear statement
of the analytical approach to be followed prospectively in
stipulated unit cases.” Caesars Tahoe, above at 1097.
The Board restated this analytical approach as follows:
[T]he Board must first determine whether the stipula-
tion is ambiguous. If the objective intent of the parties
is expressed in clear and unambiguous terms in the
stipulation, the Board simply enforces the agreement.
If, however, the stipulation is ambiguous, the Board
must seek to determine the parties’ intent through nor-
mal methods of contract interpretation, including the
examination of extrinsic evidence. If the parties’ intent
still cannot be discerned, then the Board determines the
bargaining unit by employing its normal community-
of-interest test.
Id.
Because this is a stipulated unit election, Caesars Ta-
hoe is the appropriate standard to apply to resolve
whether challenged voters are included in the stipulated
unit. I agree with my colleagues that Fairbairn’s position
as a Post-Doctoral Teaching Fellow was unambiguously
included within the stipulated unit. I also find, as do my
colleagues, that Dowd’s and Kimball’s positions were
unambiguously included in the stipulated unit. Again,
the parties stipulated to a bargaining unit that relevantly
included “[a]ll full-time, part-time and half-time, non-
tenure and non-tenure track faculty.” Dowd’s and Kim-
ball’s appointment letters indicated that each received a
“full-time, non-tenure-track appointment.”
The stipulation is, however, ambiguous with regard to
Briggs and Thompson. Their letters of appointment in-
dicate that they were employed as part-time lecturers, a
position not mentioned in the stipulation. However, the
parties’ intent may be determined at the second step of
the Caesars Tahoe analysis by examining extrinsic evi-
dence. The Employer’s Faculty Handbook states, “All
part-time faculty are considered to be non-tenure-track
faculty . . . .” Thus, as part-time lecturers, Briggs and
Thompson were part-time, non–tenure track faculty.
Based on the language of the stipulation as further clari-
fied by the Faculty Handbook, I find that the parties
clearly intended to include Briggs and Thompson in the
stipulated unit.
The Employer maintains that all five challenged voters
are ineligible because they lack a community of interest
with the voters in the stipulated bargaining unit due to
their temporary status. Specifically as to Fairbairn, the
Employer challenges the hearing officer’s conclusion
that the inclusion of “Post-Doctoral Teaching Fellows”
in the stipulated unit ends the inquiry as to her. Moreo-
ver, the Employer contends that even though the unit
description explicitly includes non-tenure track faculty,
“that does not mean that any individual who is a non-
tenure track faculty automatically is eligible to vote.” I
view the Employer’s argument as to both Fairbairn and
the other challenged voters as faulty on two grounds.
First, unit inclusion and voting eligibility are cotermi-
nous concepts. It is the Board’s policy “to grant all em-
ployees included in the appropriate unit the privilege of
voting in the election.” Sears Roebuck & Co., 112
NLRB 559, 569 fn. 28 (1955); see also Gala Food Pro-
cessing, 310 NLRB at 1194 fn. 7 (“Unit inclusion and
voter eligibility are, of course, inseparable.”).
Second, Caesars Tahoe eliminates the need to reach
the question of the challenged voters’ alleged temporary
status. The exclusion of an employee from a bargaining
unit due to his or her temporary status is based on com-
munity-of-interest principles. See Marian Medical Cen-
ter, 339 NLRB 127, 128 (2003) (temporary employee
analysis focuses on “the critical nexus between an em-
ployee’s temporary tenure and the determination whether
he shares a community of interest with the unit employ-
ees”); St. Thomas-St. John Cable TV, 309 NLRB 712,
712 (1992) (finding that challenged voter was a “tempo-
rary employee who lacked a sufficient community of
interest with unit employees to be an eligible voter”);
Pen Mar Packaging Corp., 261 NLRB 874, 874 (1982)
(finding challenged voter “to be a temporary employee
who does not share a community of interest with any of
the unit employees”). Under Caesars Tahoe, however,
where the parties’ intent is clear from the unambiguous
terms of the stipulation, or where the stipulation is am-
biguous but the parties’ intent may be determined
through normal methods of contract interpretation, in-
cluding the examination of extrinsic evidence, a commu-
nity-of-interest analysis is not reached. 337 NLRB at
1097.1

1 To the extent the Board has considered temporary employee status
in stipulated unit elections, these cases predate Caesars Tahoe, where
the Board held that a community-of-interest analysis will not be
reached where the parties’ intent may be ascertained from the stipula-
tion itself. See St. Thomas-St. John Cable TV, above at 712 (failing to
analyze stipulation before finding challenged employee “lacked a suffi-
cient community of interest with unit employees to be an eligible vot-
er”); Pen Mar Packaging, above at 874 (failing to analyze stipulation
GOUCHER COLLEGE 5
Declining to reach “temporary employee” status in a
stipulated election where the parties’ intentions are clear
is consistent with the Board’s refusal to apply a “dual
function” analysis in similar circumstances. As the
Board recognized in Halsted Communications, since a
“dual-function analysis is a variant of the community-of-
interest test, . . . it is not applied where the parties’ intent
to exclude the classification is clear.” 347 NLRB 225,
226 (2006); see also Peirce-Phelps, Inc., 341 NLRB 585,
585–586 (2004) (declining to reach dual-function analy-
sis where stipulation clearly excluded disputed employ-
ee); Bell Convalescent Hospital, 337 NLRB 191 (2001)
(same). Similarly, the Board has enforced a clear stipula-
tion to include part-time employees without regard to
community-of-interest principles. McFarling Foods,
Inc., 336 NLRB 1140 (2001). I find that the parties’
clear intentions must be enforced without regard to the
community-of-interest principles reflected in a temporary
employee analysis.2

before finding challenged voter was a temporary employee who did not
share a community of interest with unit employees).
2 The Board will give effect to the parties’ intent unless it is “incon-
sistent with any statutory provision or established Board policy.” Bell
Convalescent Hospital, 337 NLRB at 191. While the Board has at
times referred to a “policy” of excluding temporary employees from
In sum, the stipulation unambiguously includes Fair-
bairn, Dowd, and Kimball in the bargaining unit, and the
parties’ intent to include Briggs and Thompson is equally
clear from considering the stipulation in light of extrinsic
evidence. Since that intent does not violate any statutory
provision or established Board policy, I would enforce it
without reaching the question of whether the challenged
voters were temporary.
Accordingly, for the above reasons, I concur.
Dated, Washington, D.C. August 11, 2016
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD

voting eligibility, see, e.g., Pen-Mar Packaging, 261 NLRB at 874, that
“policy” is based on community-of-interest principles. Accordingly,
the inclusion of temporary employees in a stipulated unit “is not a
violation of Board policy such as would justify overriding the stipula-
tion.” White Cloud Products, 214 NLRB at 517; accord Tidewater Oil
Co. v. NLRB, 358 F.2d at 366 (“[C]ommunity of interest . . . . [is not]
an established Board policy sufficient to override the parties’ intent
when the Board, in the interests of furthering consent elections, allows
the parties to fix the unit.”).