Kendall College

National Labor Relations Board - Board Decisions

Mar 29, 1977

228 N.L.R.B. 1083 (N.L.R.B. 1977)

KENDALL COLLEGE
Kendall College and Kendall College Council North,
Suburban Teachers Union, AFT Local 1274, AFL-
CIO. Case 13-CA-15370
March 29, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On December 27, 1976, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions together with
an answering brief.
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 considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,'
findings,2 and conclusions 3 of the Administrative
Law Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Kendall College,
Evanston, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order.
, The General Counsel's unopposed motion to correct the transcript is
hereby granted.
2 The Administrative Law Judge found that Respondent violated Sec.
8(a)(5) of the Act by bargaining individually with employees as to wage
increases and salary adjustments for the academic year 1976-77. However,
he inadvertently failed to include said finding in the Conclusions of Law set
forth in his Decision . Accordingly , the Conclusions of Law are hereby
modified to include the following as Conclusion of Law 5:
"5. By sending individual employment contracts containing salary
adjustments to its employees for the 1976-77 academic year, the Respondent
violated Section 8(aX5) and ( 1) of the Act."
3 The complaint alleges that , about April 1976, Respondent unilaterally
changed its prior practice of consulting with the faculty concerning the
publication of class schedules for the summer and fall 1976 semesters.
Contrary to the Administrative Law Judge, we find that, while the
Respondent had such a practice with respect to the fall schedule , it had no
policy of consulting faculty members prior to publication of class schedules
for the summer term . Accordingly , we conclude that Respondent did not
unilaterally alter its past practice with regard to scheduling of classes for the
summer term in violation of Sec . 8(a)(5) of the Act. We, however, adopt his
finding that Respondent acted unlawfully in unilaterally changing its
practice with respect to the fall schedule.
DECISION
1083
Statement of the Case
EUGENE GEORGE GOSLEE, Administrative Law Judge:
This case came on to be heard before me at Chicago,
Illinois, on September 28, 1976 , upon a complaint ' issued
,by the General Counsel of the National Labor Relations
Board and an answer filed by Kendall College , hereinafter
sometimes called the Respondent. The issues raised by the
pleadings relate to whether or not the Respondent violated
Section 8(a)(5) of the National Labor Relations Act, as
amended . Briefs have been received from the General
Counsel and the Respondent , and the briefs have been
duly considered.
Upon the entire record in this proceeding, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
1. THE BOARD'S JURISDICTION
The complaint alleges , the answer admits , and I find that
(1) the Respondent operates a college at Evanston , Illinois;
(2) its gross revenues for the year ending June 30, 1975,
were in excess of $1 million ; (3) during the same year the
Respondent purchased goods and services in interstate
commerce valued in excess of $10,000 ; and (4) the
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE STATUS OF THE CHARGING UNION
The complaint also alleges, the answer admits , and I find
that Kendall College Council , North Suburban Teachers
Union, AFT Local 1274, AFL-CIO, hereinafter called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges that since on or about April 12,
1976,2 the Respondent has failed and refused to meet,
negotiate, and bargain collectively with the Union concern-
ing wages , hours, and terns and conditions of employment
of its employees in an appropriate bargaining unit. In
I The complaint in this matter was issued on June 14 , 1976, upon a
charge filed on April 21 , 1976, and duly served on the Respondent on April
X23, 1976.
2 All dates recited hereinafter are in 1976, unless specified to the
contrary
228 NLRB No. 126
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
addition to the general refusal-to-bargain allegation, the
complaint also alleges that the Respondent violated
Section 8(aX5) of the Act by (1) bargaining individually
with employees in sending them employment contracts
containing, inter alia wage increases for several of the
employees ; (2) unilaterally and without affording the
Union an opportunity to bargain changing its prior
practice of consulting with faculty members concerning
class schedules ; and (3) unilaterally and without affording
the Union an opportunity to bargain announcing and
implementing a new divisional reorganization plan con-
cerning the selection and duties of its divisional chairmen.
By its answer, the Respondent admits that on March 29
the Union was certified by the Board, but denies that the
unit certified is a unit appropriate for the purposes of
collective bargaining , and the Respondent similarly denies
that the Union is the majority representative of its
employees in an appropriate unit . The Respondent further
admits that on and after March 30 the Union requested the
Respondent to bargain collectively and that beginning on
April 12 and continuing to date the Respondent has failed
and refused to meet, negotiate , and bargain collectively
with the Union. With respect to the allegations of unilateral
conduct and avoidance of its obligation to bargain with the
Union, the Respondent pleads that (1) it sent individual
contracts to employees , some containing wage increases,
but denies that this conduct violated the Act; (2) did not
afford the Union an opportunity to bargain on class
schedules, but did consult with members of the faculty;
and (3) did, without affording the Union notice or an
opportunity to bargain, announce a new divisional reor-
ganization of its faculty. In addition to the foregoing the
Respondent affirmatively pleads that the complaint should
be dismissed because the Board erred in excluding regular
part-time faculty members from the unit who are employed
by the College on "per-course" contracts . The Respondent
further affirmatively pleads that even if, arguendo, the
Board's certification is valid, the matters of the publication
of class schedules and divisional reorganization are not
mandatory subjects for bargaining within the meaning of
Section 8(d) of the Act.
IV. THE APPROPRIATE BARGAINING UNIT, THE
CERTIFICATION, AND THE UNION'S MAJORITY STATUS
With reference to the prior representation case,3 the
record reflects that on December 22, 1975, the Union filed
a petition for an election in a unit of all full-time teaching
employees, including the librarian , but excluding full-time
nonteaching (clerks, etc.), and part-time teaching and
nonteaching employees . On February 13, after a hearing,
the Regional Director for Region 13 issued his Decision
and Direction of Election in which he rejected the
Respondent's contention that the librarian should be
excluded from the unit, and that all part-time faculty
members employed under "per-course" contracts should
be included . On or about February 24, the Respondent
filed a request for review with the Board in which it
contended that the Regional Director erred in including
3 Kendall College, Can 13-RC-1 3911.
4 See Pittsburgh Plate Glass Company v . N.LR B., 313 U.S. 146, 162
the librarian in the unit, in excluding part-time faculty
members employed on "per-course" contracts, and in
failing to treat all part -time faculty members on the same
basis. Thereafter , by telegraphic order dated March 16, the
Board denied the Respondent 's request as raising no
substantial issues warranting review . The Board did,
however, direct that the issues raised concerning the
librarian could best be resolved through a challenge
procedure, but the Board specifically rejected the Respon-
dent's contention of error premised on the Regional
Director's exclusion of part-time faculty members em-
ployed on a "per-course" basis.
The record further reveals that an election was conduct-
ed on March 19, in which the Union received a majority of
the valid votes cast . Thereafter , on March 29, the Regional
Director issued a Certification of Representative , certifying
the Union as the exclusive bargaining representative in the
following described unit:
All employees employed as full-time teachers of college
students, divisional chairmen who are employed as
faculty members on a full-time basis, employees
employed on a full-time basis who teach college
students and perform other functions , part-time faculty
members who are employed on a "pro-rated " full-time
contract and the librarian , all located at the Employer's
facility at 2408 Orrington Avenue, Evanston, Illinois,
excluding all part-time faculty members employed on a
"per-course" contract, all teachers in the child labora-
tory school , all guards and supervisors as defined in the
Act, and all other employees.
It is well settled that in the absence of newly discovered
or previously unavailable evidence, or special circumstan-
ces, a respondent in a proceeding alleging a violation of
Section 8(a)(5) of the Act is not entitled to relitigate issues
which were or could have been litigated in the underlying
representation proceeding .4 The Respondent concedes that
there is no newly discovered or previously unavailable
evidence , the record contains no evidence to warrant a
fording of special circumstances, and I find that I am
bound by the Board 's unit determination and the certifica-
tion in Kendall College, Case 13-RC--15370. Accordingly, I
find that the unit described above is a unit appropriate for
the purposes of collective bargaining and that at all times
since March 29, 1976, the Union has been the sole and
exclusive collective-bargaining agent for employees in the
unit for the purposes of collective bargaining with respect
to wages, rates of pay , hours of employment , and other
terms and conditions of employment . In the light of the
Respondent's admission by answer, I also find that since
on or about March 30, and continuing to date, the Union
has requested the Respondent to meet and bargain
collectively, and since on or about April 12, and continuing
to date, the Respondent has failed and refused to meet and
bargain collectively with the Union . With respect to the
other allegations of the complaint, I similarly reject all of
the Respondent 's defenses predicated on its plea of the
(1941), and Rules and Regulations of the Board, Secs. 102.67(0 and
102.69(c).
KENDALL COLLEGE
inappropriateness of the unit and the invalidity of the
certification.
V. THE EMPLOYMENT CONTRACTS
Paragraph IX(a) of the complaint alleges that the
Respondent bargained individually with employees in the
bargaining unit by sending them employment contracts for
the academic year 1976-77, some of which contained, inter
alia, offers of wage increases. The Respondent admits in its
answer that in April it did submit employment contracts to
its faculty members, but it denies that it engaged in any
individual bargaining.
The record reflects that, between April 15 and September
17, the Respondent sent employment contracts to its full-
time and part-time faculty members in the bargaining unit
for the 1976-77 academic year. The employment contracts
contained, among other things, a description of duties,
responsibilities and work to be performed, and the salary
and benefits to be paid. Each contract imposed a 15-day
deadline for employee approval, and upon failure to meet
the deadline the faculty member would be deemed to have
resigned or declined the position offered. Upon the
evidence available in the record, and as the Respondent
concedes, a majority of the full-time faculty members were
offered an increase in salary above the amount they were
paid in the 1975-76 academic year. The evidence also
reflects that the employment contract for one faculty
member converted her employment status from pro rated,
a position within the bargaining unit, to the status of a
"per-course" faculty member, a position excluded from the
unit. In addition, the evidence reveals that, in conjunction
with its reorganization plan, the contracts proposed by the
Respondent to certain faculty members previously classi-
fied as divisional chairmen converted their status to
divisional directors, and imposed additional duties and
responsibilities. As the Respondent also concedes, some of
these additional duties entailed supervisory responsibilities,
and would have excluded the divisional directors from the
bargaining unit.
It appears to be the General Counsel's argument by brief
that the employment contracts sent by the Respondent to
its faculty members are per se evidence of a violation of
Section 8(a)(5), by reason that they were designed to
bypass the bargaining agent and constituted individual
bargaining with unit employees. Whatever the merits of
this contention, I find that it is outside the scope of the
complaint, both in terms of the literal reading of paragraph
IX(a) and as construed by the General Counsel at the
outset of the hearing. The General Counsel was questioned
specifically about the scope of paragraph IX(a), and he
gave the Respondent notice that the scope of the allegation
included the proposed salary increases in the 1976-77
employment contracts, and that the term "inter alia" was to
be construed to incorporate only those additional changes
by which unit employees were converted to supervisors, or
otherwise excluded from the bargaining unit by reason of a
change in classification. My consideration herein will be
1085
limited, therefore, to that construction of paragraph IX(a)
of the complaint.
The Respondent's primary defense to the alleged 8(a)(5)
violations flowing from the 1976-77 employment contracts
is bottomed on its contention that no obligation to bargain
existed by reason of the inappropriateness of the unit and
the resulting invalidity of the certification. This defense has
been rejected above under the rationale of the U.S.
Supreme Court's decision in Pittsburgh Plate Glass, supra,
and my finding that the obligation to bargain existed at all
times on and after March 29. Additionally, however, the
Respondent contends that the 1976-77 employment con-
tracts sent to its faculty members, including the salary
increases offered and granted, were in accord with its
established and longstanding practice, and that the
General Counsel has not proved the allegation of individu-
al bargaining because there is no record evidence that the
Respondent's management had any discussions with unit
employees concerning the terms of the employment
contracts. Limited at this juncture to the issue of the salary
increases, I find no merit in the Respondent's contentions.
The wages of employees, whether defined as hourly rates
of pay or salary, is clearly included, in haec verba, within
the mandatory subjects of bargaining encompassed under
the scope of Section 8(d) of the Act. It is also clear, as the
Respondent argues, that the College has an established
practice of contracting on an annual basis with its faculty
members, and that salary adjustments have been included
in these employment contracts when funds were available
and other conditions were met. Dean Lewis M. Hopfe
testified that for the past 8 or 9 years the Respondent has
operated under a salary schedule model, and that the
methodology followed in the salary adjustments in the
1976-77 contracts conformed in all respects with past
practice. Hopfe described the process followed in 1976 as
follows:
... in the spring of 1976 the Board of Trustees
informed the President and me that there was a certain
amount, certain dollar figure, that would be utilized for
raises . I therefore went to the policy manual salary
scale. I raised each category an appropriate amount,
and then as each faculty member fit into a category
there was room for either a small increase or a larger
increase, depending upon the performance of the
faculty member during the year.
When a bargaining obligation exists, the mere existence
of an established practice of periodic wage or salary
adjustments does not automatically negate an employer's
obligation to give the bargaining agent notice and the
opportunity to bargain. So-called automatic increases to
which an employer has already committed itself must be
distinguished from increases that are granted or withheld,
or structured in amount, by application of a measure of
discretion. In N.L R.B. v. Benne Katz, etc., d/b/a Williams-
burg Steel Products Co.,5 the U.S. Supreme Court held:
Whatever might be the case as to so-called "merit
raises" which are in fact simply automatic increases to
5 369 U S. 736, 746-747 (1962), and cases cited therein at fn 14
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which the employer has already committed himself, the
raises here in question were in no sense automatic, but
were informed by a large measure of discretion. There
simply is no way in such case for a union to know
whether or not there has been a substantial departure
from past practice , and therefore the union may
properly insist that the company negotiate as to the
procedures and criteria for determining such increases.
The facts here fit squarely with the Supreme Court's
reasoning in the Katz case . The salary increases offered and
granted by the Respondent here were not simply an
extension of past practice of annual adjustments deter-
mined by the availability of budget funds . Hopfe made the
determination of the size of the increase , if any at all, by
the assessment of the faculty member's performance during
the year. As the record reflects , the salary increases here
ranged from a low of $200 to a high of $6,666 , one faculty
member was offered no salary increase , and the salaries
offered to three faculty members were diminished in
amount . Both from Hopfe's description of the methodolo-
gy used and the variation in amounts there can be no
contest here that the salary increases offered and granted
by the Respondent in the employment contracts for the
1976-77 academic year were "informed by a large measure
of discretion."
Nor do I find merit in the Respondent 's contention that
proof of individual bargaining fails here by reason that
there is no evidence that the Respondent had discussions
with faculty members concerning the terms of the 1976-77
contracts . I am aware of no case law, and none has been
cited by the Respondent , which imposes the necessity to
prove face-to-face consultations as an element of proof of
individual bargaining in contravention of Section 8(a)(5).
The contracts sent by the Respondent to its faculty
members in this case covered a broad range of mandatory
subjects of bargaining , including salaries and terms and
conditions of employment . In addition , each contract
imposed a 15-day deadline for the employee 's approval of
the whole of the proposed contract with the only alterna-
tive , not consultation or bargaining , but termination from
employment. In the light of this evidence , the Respondent's
plea that it abstained from face-to-face consultations with
the employees in the bargaining unit only solidifies the
proof that it bypassed the bargaining agent and bargained
individually with its employees.
Accordingly, I find that, by sending individual employ-
ment contracts containing salary adjustments to its
employees for the 1976-77 academic year, the Respondent
violated Section 8(a)(5) and ( 1) of the Act. As to the other
changes contained in the employment contracts , they will
be considered below in conjunction with the allegation
related to the Respondent 's announcement of a divisional
reorganization.
VI. THE PUBLICATION OF CLASS SCHEDULES
Paragraph IX(b) of the complaint alleges that in April
the Respondent unilaterally, and without notice of consul-
tation with the Union or the employees, changed its past
practice of conferring with faculty members before pub-
lishing class schedules. In its answer the Respondent admits
that it did not afford the Union an opportunity to bargain
on this issue, but denies that it failed to consult with
employees before publication of class schedules for the
summer and fall 1976 semesters.
From all of the relevant evidence in the record, including
the testimony of Dean Hopfe, I find that it has been the
Respondent's past practice to consult with its faculty
members concerning class schedules for the next academic
year. The evidence reveals that the general process
followed was initiated by a memo from the dean to the
divisional chairmen requesting tentative class schedules.
The divisional chairmen would then consult, either individ-
ually or with the body of faculty members assigned to each
division, tentative schedules would be worked out and
submitted to Dean Hopfe. Hopfe was responsible for
publication of the final class schedules, but the evidence I
credit reflects that the tentative schedules worked out in
consultation with the division chairmen and the faculty
members were most general in conformance with the final
published schedules. If conflicts or problems resulted from
the published schedules, individual consultations were
permitted between the faculty members and Dean Hopfe,
and the record reflects that this latter practice was adhered
to, at least to some extent, after Hopfe published the
schedules for the summer and fall semesters in 1976.
The evidence is also clear that prior practice with respect
to consultation on class schedules was abandoned by the
Respondent for the academic year 1976-77. Dean Hopfe
admitted that he did not consult with the divisional
directors for the fall term of 1976-77, and contrary to his
past practice did not send a memo to the divisional
directors setting a date for the submission of tentative class
schedules. According to Hopfe's further testimony, he and
the registrar prepared the fall schedule in March, the actual
schedule was published for preregistration advising in
April, and specific faculty assignments were made no later
than June 1. In at least one instance a faculty member
complained of a schedule of assignment to three courses in
a row, and apparently the complaint was resolved.
The Respondent defends the allegation with respect to
the 1976-77 class schedules on three general grounds. First,
it contends there was no significant or material change in
the practice of the College. Second, the Respondent argues
that the scheduling of a particular class at a particular time,
without more, has no effect on wages, hours, or terms or
conditions of employment. Third, the assignment of hours
to a particular class is inherently a managerial function,
and not subject to a bargaining obligation.
As to the Respondent's first contention, I cannot fmd
from this record any evidentiary support for the proposi-
tion that the changes from past practice were neither
significant nor material. Hopfe, contrary to past practice,
neither notified the division directors nor invited the
submission of tentative schedules. As a result the division
directors had no consultation with faculty members, and
there was no input from the bargaining unit employees
other than whatever accommodations were reached upon
complaint by faculty members after the final schedule had
been published.
Nor do I find any greater merit to the Respondent's
contention that class schedules, without more, have no
KENDALL COLLEGE 1087
effect on wages and terms and conditions of employment.
It may be, as the Respondent argues, that faculty members
are required to spend certain designated hours on the
campus without regard to the particular time classes are
taught. This fact cannot be further construed, however, to
support the contention that the time of class schedules is a
matter completely outside the employees' terms and
conditions of employment. Whether an employee reports
for an 8 a.m. as opposed to a 10 a.m. class, or is required to
teach until 6 p.m. as opposed to 4 p.m., is certainly
encompassed within the term "hours" as mandated in
Section 8(d) of the Act. There is evidence here, moreover,
that some of the Respondent's faculty members have
outside employment with other educational institutions
and still others have personal problems or predilections for
days and hours for teaching. In the past the Respondent
has sought to accommodate such personal preferences, and
the vehicle used to reach that accommodation was, at least
in major part, the rights of consultation between division
heads and faculty members and the submission of tentative
schedules. The mere existence of this past practice, and the
evidence that tentative schedules were usually adopted as
the final class schedule, is persuasive that the Respondent,
contrary to its present argument, has long recognized that
class schedules are a term and condition of employment.
The Respondent's argument that class scheduling has no
significant or material impact on the terms and conditions
of employment is essentially the same as its argument that
the issue is a nonmandatory subject for bargaining. I have
found above that the Respondent, after the Union's
certification, made substantial changes in the processes by
which class schedules were arrived at by consultation
between the employees and management. That issue aside,
however, and notwithstanding that the Respondent is an
educational institution as opposed to some other form of
enterprise, its class schedules are in effect work schedules,
and there is ample precedent to support the finding that
work schedules are mandatory subjects for bargaining.
Where an obligation to bargain exists an employer may not
fix or alter work schedules without notice and opportunity
given to the bargaining agent to bargain collectively. In
language adopted by the Board in a recent decision:
Work schedules relate directly to hours and conditions
of employment. Here the changed work schedules
affected the hours worked by the employees, their days
off, the number of consecutive days they worked, and
the amount of overtime they were scheduled to work.
There can be little doubt that work schedules are
mandatory subjects of bargaining ... 6
The factual evidence herein reflects that the Respon-
dent's unilaterally determined and published class sche-
dules had the potential, if not an actual, affect on the
consecutive time or hours worked by the faculty members,
their days off, and their ability to pursue other employment
and personal interests. Accordingly, I reject the Respon-
dent's contention that the class schedules are not a
mandatory subject for bargaining and find that, by
s American Cyanamid Company, 185 NLRB 981, 984 (1970)
In arriving at this finding I have not relied to any extent on state court
and administrative agency decisions cited by the General Counsel on the
unilaterally changing its past practice, and by failing to
give the Union notice and an opportunity to bargain over
the scheduling of classes, the Respondent violated Section
8(a)(5) and (1) of the Act.7
VII. DIVISIONAL REORGANIZATION
As amended at the hearing, paragraph IX(c) of the
complaint alleges that in May the Respondent announced
and subsequently implemented a divisional reorganization
plan which unilaterally changed , inter alia, the method of
selection and duties of its divisional chairmen. The General
Counsel alleges and the Respondent admits the divisional
reorganization was undertaken and implemented without
notice to the Union or an opportunity afforded to it to
bargain collectively.
The General Counsel's contention with respect to the
divisional reorganization plan is twofold. Initially, he
argues that the reorganization constituted a unilateral
change in existing conditions by depriving the faculty
members of the right to an annual election by which
divisional chairmen had previously been selected. Second-
ly, the General Counsel contends that the reorganization
added additional duties and responsibilities for the divi-
sional chairmen, some of which entailed supervisory
authority, thus removing the chairmen from inclusion in
the bargaining unit. As this was accomplished without
notice or opportunity to bargain, the General Counsel
argues that the Respondent further violated Section 8(a)(5).
There is no doubt from the evidence in the record that
the Respondent had an established policy, dating back
several years, of permitting eligible faculty members to
participate through an election process in the selection of
department heads. Regulations governing the election
process, including eligibility rules for both office and
voting and administrative approval, were promulgated in
the Respondent's policy manual . There is evidence that the
elective process was not uniformly followed, particularly
when chairmen were selected for new departments, but the
elective procedure was generally followed. For the academ-
ic year 1975-76 chairmen for at least three of the College's
divisions were elected by faculty members, and appointed
with administrative approval.
On May 18 Dean Hopfe sent a memorandum to all
faculty on the subject of divisional leadership. The ultimate
message of Hopfe's memorandum was a reorganization of
the College's academic programs into six divisions. The
contents of the memorandum reflect that Hopfe first
presented the plan to the executive committee of the
faculty senate on April 28, and on April 30 sent a
memorandum to all the faculty outlining his ideas, the
needs of the College and requesting ideas and suggestions.
In the latter memorandum Hopfe also requested that the
matter be placed on the agenda for the faculty senate
meeting scheduled for May 5. However, at the May 5
meeting the matter of reorganization was tabled without
discussion and on May 18 Hopfe presented the plan to the
board of trustees, which apparently approved.
issue of "school calendars" as mandatory subjects for bargaining The
decisions , whether pro or con, do not construe either Sec. 8 (a)(5) or Sec. 8(d)
of the National Labor Relations Act
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the foregoing , Hopfe's May 18 memoran-
dum announced that (1) the reorganization would go into
effect in September ; (2) that each divisional directorship
would be an appointed position ; and (3) divisional
directors would be considered supervisory personnel. As to
the latter consequence of the reorganization plan, the
Respondent concedes that the divisional directors are
supervisors, and the teaching contracts submitted to them
for the academic year 1976-77 clearly reflect that their
supervisory authority is of a nature encompassed within
the meaning of Section 2(11) of the Act.
The record also reveals that, since approximately 1973,
there has been a gradual but continuing change in the
structure and function of Kendall College . With a goal of
structuring the College away from the traditional liberal
arts institution toward career programs and courses of
study, some study areas were dropped , others were added,
and still others were consolidated . The Respondent argues
that what happened in May 1975 was simply a continua-
tion of the program initiated in 1973 to restructure the
College 's academic program, and increasing and consoli-
dating its divisions was an integral part of that reorganiza-
tion plan.
The Respondent, citing Fibreboard; 8 contends that the
determination by the College of its courses of study and the
divisional structure under which those programs of study
are to be pursued is not a mandatory subject of bargaining,
and to require such bargaining would "significantly
abridge [the College 's] freedom to manage the business."
In part I agree with the Respondent 's contention, and even
the General Counsel does not urge that the whole of the
division reorganization plan required notice and bargain-
ing with the Union. I do not agree, however, with the
Respondent 's argument that there were no substantial
departures from past practice , as I also disagree with the
Respondent's proposition that the whole of the reorganiza-
tion was a nonmandatory subject for bargaining.
The evidence is clear that the Respondent departed from
its established practice by retracting the established rights
of the bargaining unit employees to participate in the
selection of division chairmen . There is the additional
evidence that the division chairmen, now titled division
directors, were vested with supervisory authority, with a
consequent reduction of positions in the bargaining unit.
Thus, it cannot be said, as the Respondent argues, the
whole of the reorganization plan had at most a de minimus
impact on the employees in the unit.
As to the change in the method of selecting division
chairmen , the unilateral conduct must be viewed in the
light of all the surrounding circumstances . It is granted that
the whole of the reorganization plan was an ongoing
program intended as a means to better manage the
College's business. Nevertheless, the retraction of the right
of the employees to participate in the selection of division
chairmen must also be considered in the context of the
Respondent's avoidance of its bargaining obligation in
other respects. In order to obtain court review of the
Board's certification the Respondent refused to recognize
and bargain with the Union. Although this conduct, in and
of itself does not exemplify bad faith, it culminated in other
conduct which does evince bad faith. As found above, the
Respondent bypassed the Union and bargained individual-
ly with its employees on the matter of salaries. In addition,
and contrary to its established practice, the Respondent
bypassed the Union a second time when it unilaterally
withdrew from its employees the right to participate in the
scheduling of classes . Viewed against this background, the
Respondent's argument that the impact on the bargaining
unit was de minimis cannot be sustained.9
The Respondent also contends that it had no duty to
bargain over that portion of the reorganization plan which
converted nonsupervisory positions into supervisory posi-
tions.10 I agree , as a general legal proposition, and it is
supported by Board cases, that, "[A ]n employer does not
have a statutory duty to bargain with a union concerning
his nondiscriminatory choice of supervisory personnel.""
However, the Board has also held that, where an employer
promotes bargaining unit employees to supervisory posi-
tions, with a consequent abolition of bargaining unit jobs,
the duty to bargain arises.12 It is clear in this case that the
Respondent's creation of six supervisory positions had a
significant impact on the bargaining unit. The record
reveals that there were approximately 22 teaching positions
in the bargaining unit, including faculty members previous-
ly classified as division chairmen. As a result of the
Respondent's unilateral creation of six supervisory posi-
tions, the size of the unit has been decreased by more than
25 percent, and if the unilateral change of another
employee from the classification of "pro-rated" to "per-
course" is considered, the reduction in the size of the unit
approaches 33 percent. As the record reflects that the
supervisory division directors will continue to perform the
teaching duties previously performed by the nonsuperviso-
ry division chairmen, the impact on the amount of work
available to the remaining unit employees is equally
substantial.13
The Respondent argues that the rule of Tesoro Petroleum
and related cases should not apply here because of the
marked difference between employees in an industrial unit
and employees in a college faculty unit. While cognizant of
differences between industrial workers and college teachers
insofar as duties and skills are concerned, I am not
impressed with Respondent's argument that the law
requiring bargaining on mandatory subjects requires a
different interpretation in the halls of academia than it
does in an industrial shop. The record here contains no
substantial or persuasive evidence that the Respondent
created six new supervisory positions for any genuine
business or academic need and, again , its conduct in this
respect must be viewed against the background of its other
unilateral acts and failures to give notice and an opportuni-
ty to bargain on other mandatory subjects.
I find, accordingly, that by unilaterally changing its past
practice permitting faculty members to participate in the
Fibreboard Paper Products Corp. v. N.LR.B., 379 U.S 203, 213 (1964). 11 Tesoro Petroleum Corporation, 192 NLRB 354, 359 (1971), citing
Ordont Orthodontic Laboratories, Inc, 156 NLRB 49, 65 (1965), and KONO-TV, supra
cases cited therein . 12 Tesoro Petroleum, supra, citing Laclede Gas Company, 171 NLRB 1392
10 Citing KONO - TV-Mission Telecasting Corporation, 163 NLRB 1005, (1968).
1008(1%7) 13 Tesoro Petroleum, supra at 359.
KENDALL COLLEGE
selection of division chairmen, and by failing to give the
Union notice and an opportunity to bargain over the
conversion of nonsupervisors to supervisors, the Respon-
dent violated Section 8(a)(5) and (1) of the Act. In the light
of this finding, I further find that the individual employ-
ment contracts sent by the College to unit employees from
April to September, insofar as they assigned supervisory
responsibilities and changed the status of another employ-
ee from "pro-rated" to "per-course," violated Section
8(a)(5) and (1) of the Act.
III. THE REMEDY
Having found that the Respondent has engaged in
violations of Section 8(a)(5) and (1) of the National Labor
Relations Act, I shall recommend that it be ordered to
cease and desist therefrom, and to take certain affirmative
actions to remedy the unfair labor practices and to
effectuate the policies of the Act.
As I have found that the Respondent has failed and
refused to recognize and bargain with the Union as the
duly certified bargaining representative of its employees in
an appropriate unit, I shall affirmatively order that, upon
request, the Respondent meet and bargain collectively with
respect to wages, hours, and other terms and conditions of
employment. As to the other violations of Section 8(a)(5)
found herein, it is the Board's policy to direct an employer
to restore the status quo where he has taken unilateral
action in bypassing the collective-bargaining agent to the
detriment of his employees.14 Here it is not clear whether
the Respondent's unilateral changes, in their entirety, have
been to the detriment of the employees, and in such a
mixed situation I shall follow the Board's customary policy
and issue a restoration order conditioned upon the
affirmative desires of the affected employees as expressed
through their bargaining agent.15
CONCLUSIONS OF LAW
1. The Respondent, Kendall College, is an employer
within the meaning of Section 2(2) of the Act, and is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, Kendall College Council, North Subur-
ban Teachers Union, AFT Local 1274, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. At all times since March 29, 1976, the Union has
been, and is now, the sole and exclusive bargaining
representative of the Respondent's employees in the
following described appropriate bargaining unit for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment:
All employees employed by Kendall College as full-
time teachers of college students, divisional chairmen
who are employed as faculty members on a full-time
14 Whutock Supply Company, 171 NLRB 201, 203 (1968), citing Herman
Sausage Co., Inc, 122 NLRB 168 (1958), enfd. 275 F2d 229 (C.A. 5, 1960).
15 Herman Sausage, supra at 172-173.
16 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
1089
basis, employees employed on a full-time basis who
teach college students and perform other functions,
part-time faculty members who are employed on a
"pro-rated" full-time contract and the librarian, all
located at the Respondent's facility, excluding all part-
time faculty members employed on a "per-course"
contract, all teachers in the child laboratory school, all
guards and supervisors as defined in the Act and all
other employees.
4. By failing and refusing on and after April 12, 1976,
to meet and bargain collectively with the Union as the sole
and exclusive bargaining representative of the employees in
the appropriate unit described above, the Respondent has
violated, and is violating, Section 8(a)(5) and (1) of the Act.
6. By unilaterally publishing class schedules for the
summer and fall semesters of 1976, thereby discontinuing
its prior practice of consulting with its faculty members
concerning such class schedules, the Respondent violated
Section 8(a)(5) and (1) of the Act.
7. By unilaterally changing its past practice of permit-
ting its faculty members to participate in the selection of
division chairmen, and by unilaterally converting certain
employees from nonsupervisory to supervisory positions,
the Respondent violated Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this proceeding, and
pursuant to the provisions of Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER 16
The Respondent, Kendall College, Evanston, Illinois, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing and refusing to meet and bargain collectively
with Kendall College Council as the sole and exclusive
collective-bargaining representative of the employees in the
unit found appropriate herein.
(b) Unilaterally contracting with its employees concern-
ing wages or other terms and conditions of employment;
unilaterally posting class schedules in contravention of its
past practice of consulting with its faculty members with
respect thereto; unilaterally discontinuing its prior practice
of permitting its faculty members to participate in the
selection of divisional chairmen; and unilaterally convert-
ing certain employees from nonsupervisory to supervisory
positions.
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative actions to remedy the
unfair labor practices and to effectuate the policies of the
Act:
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, meet and bargain collectively with
Kendall College Council as the exclusive bargaining
representative of the employees in the following described
bargaining unit, concerning rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, and, if an understanding is reached , embody such
under standing in a signed agreement:17
All employees employed by Kendall College as full-
time teachers of college students , divisional chairmen
who are employed as faculty members on a full-time
basis, employees employed on a full-time basis who
teach college students and perform other functions,
part-time faculty members who are employed on a
"pro-rated" full-time contract and the librarian, all
located at the Respondent's facility, excluding all part-
time faculty members employed on a "per-course"
contract, all teachers in the child laboratory school, all
guards and supervisors as defined in the Act and all
other employees.
(b) If Kendall College Council so desires, revoke and
cease giving effect to the employment contracts for its
employees executed for the 1976-77 academic year.
(c) If Kendall College Council so desires, revoke and
cease giving effect to the class schedules published for the
1976-77 academic year.
(d) If Kendall College Council so desires , revoke and
cease giving effect to that portion of its reorganization plan
which converted certain employees from nonsupervisory to
supervisory positions.
(e) Post at its facility at Evanston, Illinois, copies of the
attached notice marked "Appendix." 18 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by the Respondent's
authorized agent, shall be posted by it immediately upon
receipt thereof, in conspicuous places , including all places
where notices to its employees are customarily posted, and
shall be maintained by the Respondent for 60 consecutive
days thereafter. Reasonable steps shall be taken to insure
that said notices are not altered, defaced, or covered by any
other materials.
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
17 The Union's certification shall extend I year from the date upon which
the Respondent begins actual bargaining . Mar-Jac Poultry Company, Inc.,
136 NLRB 785, 787 (1962).
is In the Event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to meet and bargain collectively
with Kendall College Council, North Suburban Teach-
ers Union, AFT Local 1274, AFL-CIO, as the sole and
exclusive bargaining representative of our employees in
the following appropriate bargaining unit:
All employees employed by Kendall College as
full-time teachers of college students, divisional
chairmen who are employed as faculty members
on a full-time basis , employees employed on a
full-time basis who teach college students and
perform other functions , part-time faculty mem-
bers who are employed on a "pro-rated" full-time
contract and the librarian, all located at the
Respondent's facility, excluding all part-time
faculty members employed on a "per-course"
contract, all teachers in the child laboratory
school, all guards and supervisors as defined in
the Act and all other employees.
WE WILL NOT unilaterally:
(1) Contract individually with our employees
concerning wages or terms and conditions of
employment.
(2) Change our prior practice and publish class
schedules without according our employees the
right of consultation.
(3) Change our prior practice of permitting our
employees to participate in the selection of
divisional chairmen.
(4) Convert the status of our employees from
nonsupervisory to supervisory positions.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE WILL, upon request, bargain collectively with
Kendall College Council as the sole and exclusive
collective-bargaining representative of the employees in
the bargaining unit described above in respect to rates
of pay, wages, hours of employment, and other terms
and conditions of employment.
WE WILL, if Kendall College Council so desires:
(1) Revoke and cease giving effect to the
employment contracts executed by our employees
for the 1976-77 academic year.
(2) Revoke and cease giving effect to the class
schedules published for the 1976-77 academic
year.
(3) Revoke and cease giving effect to that
portion of our reorganization plan which convert-
ed certain of our employees from nonsupervisory
to supervisory positions.
KENDALL COLLEGE