Kendall College Of Art

National Labor Relations Board - Board Decisions

May 31, 1988

288 N.L.R.B. 1205 (N.L.R.B. 1988)

KENDALL COLLEGE OF ART 1205
David Wolcott Kendall Memorial School a/k/a Ken-
dall College of Art and Design and Kendall
Faculty Association, MEA/NEA. Cases 7-CA-
17983, 7-CA-18068, 7-CA-18542, 7-CA-
18979, 7-CA-20878, 7-CA-21705, 7-CA-
22458, 7-CA-23283, 7-CA-23887, 7-CA-
24232, 7-CA-24889, 7-CA-25328, 7-CA-
25839, and 7-CA-26569
May 31, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On December 7, 1987, Administrative Law-
Judge Lowell Goerlich issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief and the Charging Party filed an an-
swering brief to the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions 1 and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
1 The judge found that the Respondent's instruction to employees to
report any union activity that caused them undue pressure violated Sec.
8(aX1), but did not refer to the 8(a)(3) violation as additionally alleged by
the General Counsel. The General Counsel did not except to this omis-
sion. All remaining 8(a)(3) complaint allegations were withdrawn at the
hearing. Accordingly, we amend par. 7 of the judge's Conclusions of
Law by deleting the reference to an 8(a)(3) violation. In addition, we do
not rely on fn. 23 of the judge's opinion, referring to cases involving dis-
criminatory conduct.
2 To the extent that prior Board recognition of the parties' contractual
unit description as appropriate could be construed as contrary to Board
policy against bifurcated units, e.g., Puerto Rico Junior College, 265
NLRB 72, 73 (1982), this error has not prejudiced the Respondent and
affords it no defense against the 8(a)(5) allegations in this case. It is clear
that the Respondent believed that all faculty members were managerial in
light of the Supreme Court's opinion in NLRB Y. Yeshiva University, 444
U.S. 672 (1980) It therefore would have refused to bargain with the
Union and made the unilateral changes at issue even if the appropriate
unit had at all times been described as an all-faculty unit that included
departmental chairmen for all purposes. We will, however, amend the de-
scription of the appropriate bargaining unit in the Order to include all
teaching faculty for all purposes.
Interest on any money due and owing employees as a result of the Re-
spondent's unfair labor practices shall be computed in the manner pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
The Respondent excepts to the judge's inclusion of a visitatorial clause
in his recommended Order authorizing the Board, for compliance pur-
poses, to obtain discovery from the Respondent under the Federal Rules
of Civil Procedure under the supervision of the United States court of
appeals enforcing his order Under the circumstances of this case, we find
no need for such a remedial provision See Cherokee Marine Terminal,
287 NLRB 1080 (1988).
288 NLRB No. 136
spondent, David Wolcott Kendall Memorial
School a/k/a Kendall College of Art and Design,
Grand Rapids, Michigan, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order as modified.
1. Substitute the following for paragraph 1(a).
"(a) Refusing to recognize and bargain with
Kendall Faculty Association, MEA/NEA as the
exclusive bargaining representative of its employees
in the appropriate unit with respect to wages,
hours, and other terms and conditions of employ-
ment. The appropriate unit is:
All teaching faculty, excluding office employ-
ees, maintenance personnel, and supervisors."
2. Substitute the following for paragraph 2(g).
"(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain
with Kendall Faculty Association, MEA/NEA as
the exclusive representative of our employees in
the following appropriate unit:
All teaching faculty, excluding office employ-
ees, maintenance personnel, and supervisors.
WE WILL NOT unilaterally make changes in your
wages, hours, or other terms and conditions of em-
ployment concerning mandatory subjects of bar-
gaining or alter or change the conditions of em-
ployment established in your 1977-1980 working
agreement with the above-named Union without
bargaining collectively with the Union in accord-
ance with the requirements of Section 8(a)(5) of the
Act.
WE WILL NOT unlawfully deal directly with you
with respect to wages, hours, or other terms and
conditions of employment as long as you are repre-
sented by the Union for the purpose of collective-
bargaining within the meaning of the Act.
WE WILL NOT instruct you to inform US if you
feel that you have been unduly coerced or pres-
sured by the Union.
1206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, recognize and bargain
with the above-named Union as the exclusive rep-
resentative of all the employees in the appropriate
unit concerning rates of pay, hours of work, and
other terms and conditions of employment.
WE WILL, in respect to the unlawful unilateral
changes we have made since May 7, 1980, reestab-
lish the status quo ante except for those things
which have been beneficial to our employees in the
appropriate unit and make whole employees for
any losses they may have incurred by reason of our
unlawful action, with interest.
WE WILL bargain with the Union in respect to
these unilateral changes as well as to their effects,
WE WILL supply the above-named Union with
the number of contact and studio hours of all ad-
junct faculty teaching at Kendall.
DAVID WOLCOTT KENDALL MEMO-
RIAL SCHOOL A/K/A KENDALL COL;
LEGE OF ART AND DESIGN
Dwight R. Kirksey, Esq., for the General Counsel.
Robert C. Stone, Esq., of Grand Rapids, Michigan, for
the Respondent.
111. Catherine Farrell, Esq., of Southfield, Michigan, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The
following charges as stated below were filed by Kendall
Faculty Association, MEA/NEA (the Union or the
Charging Party)' against David Wolcott Kendall Memo-
rial School, a/k/a Kendall School of Design, now
known as the Kendall College of Art and Design (the
Respondent) on the dates stated.
The charge in Case 7-CA-17837 was filed on 2 June
1980,. and served by certified mail on the Respondent
about 4 June 1980.
The charge in Case 7-CA-17983 was filed on 9 July
1980, and served by certified mail on the Respondent
about 10 July 1980.
The charge in Case 7-CA-18068 was filed on 29 July
1980, and served by certified mail on the Respondent
about 31 July 1980.
The charge in Case 7-CA-18542 was filed on 20 No-
vember 1980, and served by certified mail on the Re-
spondent about 21 November 1980.
The school's name was changed from Kendall School of Design to
Kendall College of Art and Design. The caption and pleadings have been
amended accordingly.
The charge in Case 7-CA-18979 was filed on 25 Feb-
ruary 1981, and served by certified mail on the Respond-
ent about 27 February 1981.
The charge in Case 7-CA-20878 was filed on 29 June
1982, and served by certified mail on the Respondent
about 30 June 1982.
The amended charge in Case 7-CA-20878 was filed on
5 August 1982; and served by certified mail on the Re-
spondent about 9 August 1982.
The charge in Case 7-CA-21075 was filed on 1 Febru-
ary 1983, and served by certified mail on the Respondent
about 2 February 1983.
The charge in Case 7-CA-22458 was filed on 10
August 1983, and served by certified mail on the Re-
spondent about 11 August 1983.
The charge in Case 7-CA-23283 was filed on 2 April
1984, and served by certified mail on the Respondent
about 3 April 1984.
The charge in Case 7-CA-23887 was filed on 2 Octo-
ber 1984, and served by certified mail on the Respondent
about 3 October 1984.
The amended charge in Case 7-CA-23887 was filed on
9 October 1984, and served on the Respondent by certi-
fied mail about 10 October 1984.
The charge in Case 7-CA-24232 was filed on 29 Janu-
ary 1985, and served by certified mail on the Respondent
about 30 January 1985.
The charge in Case 7-CA-24889 was filed on 13
August 1985, and served by certified mail on the Re-
spondent about 14 August 1985.
The charge in Case 7-CA-25328 was filed on 19 De-
cember 1985, and served by certified mail on the Re-
spondent about 20 December 1985.
The charge in Case 7-CA-25839 was filed on 16 May
1986, and served on the Respondent by certified mail
about 19 May 1986.
The General Counsel of the National Labor Relations
Board issued a complaint 30 January 1981 and a consoli-
dated amended complaint on 5 May 1981 against the Re-
spondent, alleging, inter alia, that it had violated Section
8(a)(5) and (1) of the National Labor Relations Act (the
Act). 2 Subsequently, the cases came on for hearing at
Grand Rapids, Michigan, at which time the unfair labor
practice proceedings were adjourned pending the out-
come of a unit clarification petition filed by the Respond-
ent in Case 7-UC-226. On 14 April 1986 the Board
issued its Decision on Review and Order dismissing the
Respondent's petition for unit clarification in Case 7-
UC-226. (279 NLRB 281).
On 2 October 1986 Case 7-CA-17837 was severed
from all other pending cases involving the parties. The
case was directly transferred to the Board, and the Gen-
eral Counsel filed a Motion for Summary Judgment,
which was granted by the Board. The Board ordered the
Respondent, among other things, to bargain with the
Union in the following appropriate unit:
All teaching faculty, but does not include office em-
ployees, maintenance personnel, or supervisors. De-
2 Various other charges were filed against the Respondent These cases
have since been consolidated in the complaints mentioned above
KENDALL COLLEGE OF ART 1207
-
partment heads are excluded from the bargaining
unit to the extent of their duties as department
heads. However, it is understood and agreed that
department heads who teach on a regular basis are
in the bargaining unit with respect to their compen-
sation, working conditions, rights, duties, and re-
sponsibilities as teachers.
As its conclusion of law the Board (283 NLRB No.
44, slip op. at 5 (Mar. 20, 1987) (not reported in Board
volumes) held:
By refusing on and after 7 May 1980 to bargain
with the Union as the exclusive collective-bargain-
ing representative of employees in the appropriate
unit, the Company has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
On 21 April 1987 Case 7-CA-26569 was consolidated
with the above-captioned first 13 listed cases. The origi-
nal charge in Case 7-CA-26569 had been filed by the
Union against the Respondent on 20 January 1987, and
served by certified mail about the same date. A com-
plaint and notice of hearing was issued on 19 February
1987.
The above-captioned cases primarily involve charges
that the Respondent made illegal unilateral changes in
working conditions in violation of Section 8(a)(5) and (1)
of the Act.
The Respondent filed timely answers denying that it
had engaged in the unfair labor practices alleged.
The cases came on for hearing in Grand Rapids;
Michigan, on 6, 7, 8, and 9 July 1987. All parties were
afforded a full opportunity to be heard, to call, to exam-
ine and cross-examine witnesses, to argue orally on the
record, to submit proposed findings of fact and conclu-
sions, and to file briefs. All briefs have been carefully
considered.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Company, a Michigan corporation, operates a pri-
vate nonprofit college at its facility in Grand Rapids,
Michigan, where it annually receives gross revenues in
excess of $1 million for its operational expenses, and pur-
chases goods and materials valued in excess of $5000
which are transported and delivered to its Grand Rapids
facility directly from points located outside the State of
Michigan. We find that the Company is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.3
II. THE LABOR ORGANIZATION INVOLVED
The Union is now„ and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Representative Status of the Union
Since about 19 August 1974, the Union has been the
designated exclusive collective-bargaining representative
of the Company's employees in the following appropri-
ate unit:
All teaching faculty, but does not include office em-
ployees, maintenance personnel, or supervisors. De-
partment heads are excluded from the bargaining
unit to the extent of their duties as department
heads. It is understood and agreed, however, that
department heads who teach on a regular basis are
in the bargaining unit with respect to their compen-
sation, working conditions, rights, duties, and re-
sponsibilities as teachers.
The Union continues to be the exclusive representative
under Section 9(a) of the Act.
About 7 May 1980 the Company withdrew recogni-
tion from the Union as the exclusive collective-bargain-
ing representative of the employees in the unit, and since
7 May 1980 the Company has continued to withhold rec-
ognition from the Union. We find that this conduct con-
stitutes an unlawful refusal to bargain in violation of Sec-
tion 8(a)(5) and (1) of the Act.4
B. The Alleged Violations of Section 8(a)(1) by the
Respondent
The General Counsel has alleged in her sixth (and last)
motion to amend complaint (the motion was granted)
that "on or about July 22, 1980, Respondent at its Grand
Rapids installation, by its agent Constance Phillips, in-
structed employees to inform Respondent of any union
activities that caused such employees undue pressure."
The Respondent denies the foregoing allegations in its
answer, but admits that it "issued a general announce-
ment to faculty on July 22, 1980." The General Counsel
complains of this part of the Respondent's general an-
nouncement of 22 July 1980:
4. Please Note: Complaints have been received
that faculty members are under [undue] pressure
from the Union. The National Labor Relations Act
protects the rights of all faculty members who
either join unions or choose to refrain from any
union activities. To quote:
Rights of Employees, Sec. 7 "Employees shall
have the right to self-organization; to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or
3 As found by the Board in 283 NLRB No 44, supra. 4 Findings of the Board in 283 NLRB No. 44, supra.
1208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
protection, and shall also have the right to refrain
from any or all of such activities except to the
extent that such right may be affected by an agree-
ment requiring membership in a labor organization
as a condition of employment as authorized in sec-
tion 8(a)(3)."
Unfair labor practices, Sec. 8(a)(1). "to interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7";
If any faculty member feels that he/she has been
unduly pressured or coerced by the Union, please let
Connie know and appropriate measures will be taken
to protect your rights. [Emphasis added.]
The General Counsel asserts that the announcement
created the "inference that the Respondent wished to so-
licit information about union activists and sentiments of
its faculty" (G.C. Br. 3), citing in support of her conten-
tion Colony Printing & Labeling, 249 NLRB 223, 225
(1980); and H. Block & Co., 247 NLRB 262 (1980).
In Colony Printing & Labeling, supra at 225, the em-
ployer asked employees to report if anyone caused them
trouble at their work or put them under "any kind of
pressure to join the union." The Board held such lan-
guage to be unlawful because it had the "dual effect of
encouraging employees to report to the Respondent the
identity of union card solicitors who in any way ap-
proach employees in a manner subjectively offensive to
the solicited employees, and of correspondingly discour-
aging card solicitors in their protected organizational ac-
tivities." Citing J. H Block & Co., supra.
Although the Respondent argues that the instant case
can be distinguished from Block in that Block did not in-
volve a current union organizational campaign, the char-
acter of the coercion is the same. It is quite obvious that
the language chosen by the Respondent would have de-
terred employees from exercising their Section 7 rights
to engage in concerted activities. Freedom of employees
to contact each other in connection with the assertion of
lawful concerted objectives is a guarded right that does
not brook employer interference.
The Respondent's further argument that the publica-
tion was made because of employees' complaints, and
thus the Respondent ought to have been exonerated, is,
as are its remaining contentions, also without merit. See
J. H. Block & Co., supra.
Accordingly, I find, by the publication set out above,
that the Respondent violated Section 8(a)(1) of the Act.
C. The Alleged Unilateral Changes Perpetrated by the
Respondent Since 9 May 1980 and Other Allegations
in the Sixth Motion to Amend Complaint5
The General Counsel, in the complaints, as amended in
the consolidated cases, alleges that the Respondent, since
unlawfully withdrawing recognition from the Union, has
effected unilateral changes in "rates of pay, wages, hours
of employment or other conditions of employment"
without affording the Union an opportunity to negotiate
5 The sixth motion to amend complaint incorporates the allegations of
an the complaints except in Case 7-CA--26569, upon which issue was
joined.
and bargain in respect to them. These alleged unlawful
unilateral changes, as well as all other allegations in the
complaints, will be considered as they appear in the Gen-
eral Counsel's sixth (and last) motion to amend com-
plaint, seriatim.6
13. About the dates indicated below, at the Grand
Rapids facility, the Respondent, through its agents
Constance Phillips and Phyllis Danielson, unilater-
ally changed existing terms and conditions of em-
ployment of employees in the unit, by the follow-
ing conduct:
13(a) About 27 June 1980 it announced and ap-
proved new minimum faculty degree requirements
and set timetables for meeting the degree require-
ments.
In its answer the Respondent denied the foregoing al-
legation.
On 9 July 1980 the Charging Party filed a charge with
the memorandum set out below, alleging that the Re-
spondent had taken the action described in the memoran-
dum without bargaining with the Union.
DATE: June 27, 1980
MEMO: Instructors Employed by Kendall School
of Design for August, 1979 through
April, 1980
FROM: Phyllis I. Danielson, President and the
Board of Trustees
RE: Information on Faculty Degree Requirements
Faculty members at Kendall School of Design
should be familiar with the contents of the attached
letter from the Michigan Department of Education.
Prior to Mr. Boerma's intervention, we had an in-
formal agreement with the state that faculty could
proceed at their own rate in their professional de-
velopment. This variance agreement with Mr.
Hanson provided that faculty must hold credentials
at the bachelor level two and one-half years after
the School was authorized to offer the Associate
degree (November, 1978). Quoting from the 1979
Department of Education publication, Policies and
Procedures of the Establishment and Approval of Non-
public Colleges and Universities in Michigan, "faculty
members shall possess at a minimum a degree in the
discipline in which they teach at one level beyond
the degree level being proposed, or shall possess a
terminal degree in a professional field." When the
School was approved for the Bachelor of Fine Arts
degree, (August, 1979), we were given a five year
grace period for faculty to complete the terminal
degree. Be reminded, the terminal degree standards
set by NASA and adopted by Kendall is the Mas-
ters of Fine Arts for the studio areas, and an earned
doctorate for academic subjects and Art History.
6 The following numbered and lettered sections are the same as the
paragraphs appeanng in the General Counsel's sixth motion to amend
complaint
KENDALL COLLEGE OF ART 1209
If you fall short of this standard, I urge you to
take corrective measures as soon as possible. Sever-
al notices appearing in General Announcements
over the past few weeks have indicated available
sources of money and local graduate programs de-
signed to accommodate the needs of Kendall facul-
ty.
So that we may verify with the Michigan De-
partment of Education the Kendall faculty "good
faith" intent to comply, please complete the en-
closed form and return to Connie Phillips, by July
15. If not received by that date, we will assume you
have made no progress, and so inform the State. If
for some reasons your plans are different, and you
do not wish to be considered for a teaching assign-
ment, please notify the School in writing by the
above date.7
The enclosure referred to in the above memorandum
was a letter dated 16 June 1980 from David F. Hanson, a
specialist in accreditation and approval with the State of
Michigan Department of Education. It was as follows:
Dr. Phyllis I. Danielson, President
Kendall School of Design
1110 College, N.E.
Grands Rapids, Michigan 49503
Dear Dr. Danielson:
Dr. James Boerma of the Michigan Education
Association, Grand Rapids, contacted this office.
His question had to do with the need for currently
employed faculty at Kendall School of Design to
possess a Masters Degree.
As a result of that contact, it would appear useful
to restate the existence of a condition between Ken-
dall School of Design and the State Board of Edu-
cation. Kendall School of Design agreed when
making its request to the State Board of Education
for authority to grant an Associate of Fine Arts and
Bachelor of Fine Arts to employ only faculty who
possess a masters degree in the subject matter for
which they were providing instruction. This agree-
ment was the result of a requirement in Michigan
Statutes dealing with adequacies of staff fully
trained for new degree granting institutions. Copy
enclosed.
Because Kendall School of Design operated as a
licensed Private Occupational School for a consid-
erable period of time, certain faculty members that
did not have a masters degree could continue in em-
ployment as instructors with a stipulation that they
would make reasonable progress in pursuit of a mas-
ters degree. Reasonable progress is interpreted to
mean satisfactory completion of at least one class
per semester during the academic year, plus addi-
tional credit hour pursuit in the summer sessions. It
must be pointed out by this office, this is an unusual
variance of standard requirements for new degree
7 Dr. Phyllis Danielson testified that this was the first document the
Respondent "put out" on this subject.
granting instructional State Board of Education ap-
proval.
In those areas for which instruction is provided
at Kendall and no Masters degree is granted, such
as furniture design, faculty members are to pursue a
Masters degree program in an area closely allied or
akin to the subject matter area of instruction. A
Masters of Fine Arts would be appropriate.
It should be noted that any deviation from the above
conditions would severely jeopardize the right of Ken-
dall School of Design to grant either an Associate or
Bachelors degree. If you have any questions, please
contact this office. [Emphasis added.]
The Respondent contends that "[t]he faculty degree re-
quirement was a direct result of Kendall's decision to
become a degree-granting institution, and as such, consti-
tutes a nonmandatory subject of bargaining." With that
contention I am in agreement.
In 1976, with the advent of Dr. Danielson, the Re-
spondent initiated the change of the Respondent from a
certificate granting trade school to a 4-year academic
college offering a bachelor of fine arts degree (B.F.A.).
This was accomplished on 8 August 1979 at which time
the State of Michigan Department of Education granted
it the necessary authority to grant B.F.A. degrees.
One of the essential and necessary requirements im-
posed by the State to obtain the authority to grant
B.F.A. degrees was that faculty members must possesa,
at a minimum, a degree in the discipline in which they
teach at one level beyond the degree level being pro-
posed, or must possess a terminal degree in a professional
field. Although the State of Michigan Department of
Education allowed the Respondent some leniency in
achieving this objective, the Respondent could not
escape ultimately the State's requirement, if it expected
to grant B.F.A. degrees. Thus, those faculty members
who did not possess the required advanced degree were
fixed, by reason of this rule, with either obtaining ad-
vanced degrees or surrendering their teaching positions,
for if they were continued on the Respondent's faculty
without meeting the rule, the Respondent's right to grant
B.F.A. degrees would be in jeopardy. Hence it follows
that the state requirement including the timetable set
forth for achieving the advanced degrees were not sub-
jects over which either the Respondent or the Union
could resolve by bargaining. The Respondent, if it
wished to grant B.F.A. degrees, was compelled to set
degree requirements that were mandated by the State
and to set timetables for their implementation that would
satisfy the State's commands. That the Respondent yield-
ed to the State did not constitute a violation of Section
8(a)(5) of the Act.
The situation here is somewhat comparable with that
in NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958), in
which the Court held that because the statute required
the company to bargain with the certified representative
of its employees, bargaining in respect thereto did not
come within the definition of mandatory bargaining.
Here, the Union seeks to cause the Respondent to bar-
gain about the Employer's compliance with the statutory
requirements imposed by the State of Michigan. This
1210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
subject likewise does not come within the definition of
mandatory bargaining.
The Charging Party concedes as much when it writes
its brief "Charging Party does not dispute the legal right
to make a fundamental business decision regarding alter-
ation of the School from a three-year certificate program
to a Bachelor and Associate of Fine Arts program." But
both the Charging Party and the General Counsel con-
tend that the Respondent had the duty to bargain with
the Union over the effects of its business decision. 8 I am
persuaded that under First National Maintena'nce Corp. v.
NLRB, 452 U.S. 666 (1981), the Respondent had the
duty to bargain with the Union over the effects of its de-
cision to change the school so that it might be authorized
to grant B.F.A. degrees.
As noted above, the Union filed unfair labor practice
charges on 9 July 1980, citing a communication of the
Respondent (included was a letter dated 16 June 1980
from David F. Hanson, a specialist in accreditation and
approval, the State of Michigan Department of Educa-
tion) which anticipated the separation of any teaching
employees who did not meet the schedule and standards
for achieving advanced degrees as set forth in the
Hanson letter. The Respondent's communication empha-
sized the existence of such circumstance. Indeed, teach-
ing employees were implicitly told that if they did not
meet the standards their services would be terminated.
Thus, by reason of the Respondent's communication, it
opened up a number of issues which resulted from the
implementation of the State's requirements, and its mana-
gerial decision to change the school, such as, but not lim-
ited to, how to treat teaching employees who could not
meet the requirements (severance pay and the like),
whether to allow teaching employees who had not meet
the requirements leaves of absence to obtain advanced
degrees, wage changes for those who met the require-
ments, money grants for those who were still pursuing
advanced degrees, and assistance to find other jobs.
Those who faced separation from employment were not
unlike those employees in the First National Maintenance
Corp. case who were discharged. The effects were the
same.
Accordingly, I find that the Respondent by failing to
bargain collectively with the Union in respect to the ef-
fects of its decision to change the school into a school
which was enabled to grant B.F.A. degrees was in viola-
tion of Section 8(a)(5) and (1) of the Act.8
13(b). About 1 August 1980 it instituted a new facul-
ty ranking system and issued new individual
teaching contracts providing for wage increases
and changes in teaching hours. "
8 The Respondent does not really contest this proposition for it states
in its brief, "Respondent acknowledges that even if the faculty degree re-
quirement was a nonmandatory subject, it may have had the duty to bar-
gain over the effects of the decision."
° Because the Union's charge against the Respondent was filed on 9
July 1980 against action taken and contemplated by the Respondent in its
communication of 27 June 1980, I find without merit the Respondent's
claim that the Union waived its claim or filed it untimely under Sec.
10(b) of the Act.
In its answer the Respondent admitted the foregoing
allegation.
In August 1980 the Respondent established faculty
classifications of instructor, assistant professor, associate
professor, professor, visiting professor, and adjunct facul-
ty and unilaterally set the criteria for each of these classi-
fications. Members of the faculty were assigned to these
classifications. Letters dated 21 January 1981 were sent
to members of the faculty in which Dr. Phyllis I. Daniel-
son, president of the Respondent, discussed the faculty
ranking system. The letter to Curtis Johnson contained
these paragraphs:
The initial placement for faculty worked from a
base of step recognition previously established in
the expired master agreement." Now that we have
had an opportunity to live with this system for
awhile, we discover some inequities we wish to cor-
rect.
The base for initial appointment to the Assistant
Professor rank is calculated against a scale of:
BFA degree plus six years collegiate teaching
experience MA degree plus four years collegiate
teaching experience MFA degree plus three years
collegiate teaching experience PH.D degree
From the entering level of the Assistant Profes-
sor rank, credit is given for additional years of
teaching experience in determining step assigned on
the current salary scale. Please check the attached
work sheet. If you feel the computation does not
adequately reflect your combined degrees and years
of teaching experience, please confer immediately
with Mrs. Lamb.
Upon your signed receipt of this salary work-
sheet, 11 the salary adjustment will be awarded. The
first semester payment of 50% of total increase will
be included in payroll ending March 6, 1981. The
remaining 50% will be awarded in one sum reflect-
ed in the payroll ending May 1, 1981. We are
pleased to be able to make this positive adjustment
in your salary in recognition of your commitment to
higher education."
Under the 1977-1980 labor agreement faculty members
were classified as "full time, part-time, regular part-time,
irregular . . visiting instructor or visiting professor.""
Each faculty member was called an instructor. Their
salary ranges were set by the 1977-1980 labor agreement.
The agreement also contained this provision:
2.4. While this sets out all of the agreements
reached between the parties, it is agreed that mat-
'° The 1977-1980 collective-bargaining agreement provided for step
increases.
' 1 Ruth Lantinga's worksheet dated 21 January 198-1 indicated a rank
of assistant professor with the highest degree earned, a M.A , plus 4
years. The worksheet showed a 1980-1981 step 7 salary of $15,800 (step 7
under the 1977-1980 labor agreement was $14,537 for 1980-1981) and a
change to step 8 of $16,400. (Step 8 under the 1977-1980 agreement set
the salary at $15,139 for 1980-1981)
12 Similar letters were sent to other employees.
is Testimony of Ruth Lantmga, president of the Union.
KENDALL COLLEGE DE ART 1211
ters which are not specifically covered herein nor
were discussed during the negotiations leading up to
this Agreement shall be subject to discussion during
the life of the Agreement upon request of either
party.
In 1980 the contract hours were changed from 21 to 18.
The General Counsel's allegation is well taken.. The
Respondent unilaterally, without bargaining with the
Union, put into effect a new faculty rating system, and
wages and hours in contradiction of the 1977-1980 labor
agreement and entered into individual working agree-
ments with employees which eliminated reference to the
1977-1980 labor agreement and tied the individual em-
ployee to certain provisions of the faculty handbook.
(See infra.) The faculty handbook, which also covered
and established working conditions that deviated from
the 1977-1980 working agreement, was published and
put into effect by the Respondent. The above-described
conduct of the Respondent ran afoul of Section 8(a)(5)
and (1) of the Act in that the Respondent not only failed
to bargain concerning subjects that fell within the defini-
tion of mandatory bargaining but also altered the terms
of the 1977-1980 labor agreement without the Union's
consent.
The Supreme Court in the ease of W. R. Grace & Co.
v, Rubber Workers Local 759, 461 U.S. 757, 771 (1983),
has said:
Absent a judicial determination . . . the Company,
cannot alter the collective bargaining agreement
without the Union's consent . . . . Permitting such
a result would undermine the federal labor policy
that parties to a collective-bargaining agreement
must have reasonable assurance that their contract
will be honored.
In the case of Los Angeles-Marine Hardware Co. v.
NLRB, 602 F.2d 1302, 1307 (9th Cir. 1979), the court
said:
An employer cannot alter mandatory contractual
terms during the effective period of the agreement
without the consent of the Union. . . . As a result,
the employer's actions here amounted to a mid-term
repudiation of the CBA, in violation of §§ 8(d) and
8(a)(1) and (5) of the Act. . . . Such a repudiation
is not excused because the employer acted in good
faith or was motivated solely by economic necessi-
ty.
See NLRB v. Topinka's Country House, 624 F.2d 770 (6th
Cir. 1980). See also Manley Truck Line, 271 NLRB 679
(1984).
Moreover, "At contract expiration, an employer may
not unilaterally alter . . . a contractual term that is a
mandatory subject of bargaining. This result obtains be-
cause such term 'by operation of statute continues even
after the contract embodying it has terminated." NLRB
v. Haberman Construction Co., 618 F.2d 288, 302 (5th Cir.
1980). See also Bay Area Sealers v. NLRB, 665 F.2d 970
(9th Cir. 1982); and NLRB v. Southwest Security Equip-
ment Corp., 736 F.2d 1322 (9th Cir. 1984 Jo-Vin Dress
Co., 279 NLRB 525 (1987), enf. granted 819 F.2d 1134
(3d Cir. 1987).
As was stated in Laborers Health & Welfare Trust v.
Advanced Lightweight Concrete, 779 F.2d 497 (9th Cir.
1985):
Freezing the status qua ante after a cpllective
agreement has expired promotes industrial place by
fostering a noncoercive atmosphere that is condu-
cive to serious negotiations on a new contract.
Thus, an employer's failure to honor the terms and
conditions of an expired collective bargaining agree-
ment pending negotiations on a new agreement con-
stitutes bad faith bargaining in breach of sections
8(a)(1), 8(a)(5) and 8(d) of the National Labor Rela-
tions Act ("NLRA"), 29 U.S.C. H 158(a)(1),
158(a)(5) and 158(d). NLRB v. Katz, 369 U.S. 736,
743, 82 S. Ct. 1107, 1111, 8 L.Ed. 2d 230 (1962).14
Thus, the Respondent had the duty to maintain the ex-
isting terms and conditions of employment after the col-
lective-bargaining contract expired until it notified the
Union of intended changes and bargained to impasse
concerning the proposed changes. NLRB v. Katz, 369
U.S. 736, 743-748 (1962). This the Respondent did not
do.
Employers and statutory employee representatives are
bound to bargain in good faith about any subject that
falls within the definition of a mandatory subject of bar-
gaining. NLRB v. Borg-Warner Corp., 356 U.S. 342
(1958).
As was also stated in Van Dorn Plastic Machinery Co.
v. NLRB, 736 F.2d 343, 348 (6th Cir. 1984): "Section
8(d) of the Act, 29 U.S.C. § 158(d) (1976), requires col-
lective bargaining with respect to wages, hours, and
other terms and conditions of employment. A unilateral
change with respect to a mandatory bargaining subject is
a violation of section 8(a)(5)."
In the case of Operating Engineers Local 12 (AGC of
Southern California), 187 NLRB 430, 432 (1970), the
Board defined subjects of mandatory bargaining:
Mandatory bargaining subjects are those com-
prised in the phrase "wages, hours, and other terms
and conditions of employment" as set forth in Sec-
tion 8(d) of the Act. While the language is broad,
parameters have been established, although not
quantified. The touchstone is whether or not the
proposed clause sets a term or condition of employ-
ment or regulates the relation between the employer
and its employees.
See also Womac Industries, 238 NLRB 43 (1978).15
14 See also NLRB v. Haberman Construction Cu, supra; NLRB v. Sac
Construction Co., 603 F.2d 1155, 1157 (5th Cu. 1979); and Bay Area
Sealers v. NLRB, supra.
" As stated in NLRB v. Hospital Employees District 1199, 824 F.2d 318
(4th Cu. 1981).
Section 8(d) of the Act defines the duty to bargain under section
8(a)(5). It requires the employer to bargain over wages, hours and
other terms and conditions of employment 29 U.S.C. § 158(d). Bar-
gaining is mandatory for these subjects; and employer may not make
changes in such matters unilaterally. NLRB v. C & C Plywood Corp.,
385 U.S. 421, 425 (1967).
1212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Because the subjects covered in the General Counsel's
allegations set forth above (and found to be supported by
fact) not only had been included in the expired contract
but were subjects which fell within the definition of
mandatory bargaining, the Respondent, as noted, violat-
ed its duty to bargain in respect to them.
The Respondent urges that it be excused from bargain-
ing Wont the faculty ranking system in that it could uni-
laterally act under the management-rights clause. This
argument is flawed and is without merit as it is not estab-
lished that the management-rights clause survived the ex-
piration of the contract. As was stated (and is true here)
in Holiday Inn of Victorville, 284 NLRB 916 (1987):
"[T]here is no indication in the management-rights clause
at issue here that it was intended to outlive the con-
tract."
The Respondent further contends that it could not be
expected to keep "wages frozen for as many years be-
cause of the unexpected delay in ultimately resolving the
managerial issue." Thus, the Respondent should be' ex-
cused from its obligation to bargain. I find nothing in the
Act or the applicable case law which excuses the Re-
spondent from bargaining under these circumstances.
The Respondent's objections are without merit. Cf. Mike
O'Connor Chevrolet, 209 NLRB 701, 703 (1974); Fleming
Mfg. Co., 119 NLRB 452, 464 (1957).
13(c). About 23 October 1980 the Respondent insti-
tuted new minimum credit hour requirements for
the faculty.
In its answer the Respondent denied the foregoing al-
legation.
In a general announcement dated 23 October 1980, the
Respondent, by a resolution of its board of trustees, in-
troduced to the faculty a new minimum credit require-
ment for faculty. The resolution of 20 October 1980 pro-
vided:
THEREFORE, BE IT RESOLVED, that in ad-
dition to the requirements set by NASA and the
State of Michigan, and adopted by this Board, it is
Kendall's goal that studio faculty must present evi-
dence of preparation in art and design of at least 80
credit hours at both the graduate and undergraduate
levels, therefore, all newly hired studio faculty will
be expected to meet these criteria.
BE IT FURTHER RESOLVED, that it is Ken-
dall's goal that faculty members of the academic
and Art History courses should present evidence of
at least the equivalent of a major in the discipline
taught, with courses taken at both the graduate and
undergraduate levels, and therefore all newly hired
academic faculty will be expected to meet these cri-
teria.
Prior to 30 October 1980, no such requirement existed
nor had the Respondent negotiated with the Union re-
garding such minimum credit requirements for faculty.
The requirement that newly hired faculty meet an 80-
credit hour criteria clearly "regulates the relation be-
tween the employer and its employees." Operating Engi-
neers Local 12, supra. See also NLRB v. Laney & Duke
Storage Warehouse Co., 369 F.2d 859, 869 (5th Cir. 1966).
The language used in the announcement "in addition
to the requirements set by NASA and the State of
Michigan" refutes the Respondent's claim that the mini-
mum hour requirement was necessary to comply with
the State of Michigan Department of Education guide-
lines. The Respondent's reliance on the management-
rights clause is not well taken for the same reasons as set
forth above.
The Respondent's instituting unilaterally new mini-
mum-credit-hour requirements for the faculty was in vio-
lation of Section 8(a)(5) of the Act.
13(d). About 10 November 1980 and 9 August 1982
it promulgated, issued, and then maintained new
"faculty handbooks," which provide for changes
in faculty qualifications, outside employment,
medical insurance, faculty evaluation, the griev-
ance procedure, the institution of a faculty forum,
faculty severance, teaching loads, faculty absence
policy, and other matters therein affecting the
terms and conditions of unit employees.
In its answer the Respondent denied the foregoing al-
legation, except it admitted that "on or about November
6, 1980 and August 9, 1982, it distributed faculty hand-
books," which documents speak for themselves.
In 1980-1985 the Respondent published faculty hand-
books. A faculty handbook had also been issued in 1979,
which was effective during the term of the 1977-1980
contract.
In its brief, the Respondent states, "Kendall concede
[sic] that, during the pendency of this litigation over the
past 7 years, it has made changes in the terms and condi-
tions of employment for its faculty without bargaining
with the KFA." The Respondent apparently does not
contest the alleged unilateral changes set forth in the
above allegation, except that it claims it has had a policy
prohibiting outside employment and that the faculty
forum never materialized.
Regarding outside employment, it appears from the
General Counsel's Exhibit 12, which is a "Compilation of
Major Terms and Conditions of Employment (Kendall
School of Design) Kendall College of Art and Design
1977-1987," that outside employment was not mentioned
in the 1977-1980 agreement but was addressed in 1980-
1981, 1982-1983, 1983-1984, 1984-1985, 1985-1986, and
1986-1987 faculty handbooks. Because the provisions in
the handbooks were unilaterally established and because
the subject, outside employment, falls within the defini-
tion of a mandatory subject of bargaining, the Respond-
ent's unilateral action in respect thereto was unlawful.
Concerning the faculty forum, assuming arguendo, that
the faculty forum was not implemented, its establishment
was a subject of mandatory bargaining.
Accordingly, because the subjects listed in the above
allegation concern wages, hours, and other terms and
conditions of employment and fall, therefore, within the
definition of mandatory bargaining subjects, the Re-
spondent's unilateral treatment of them without bargain-
KENDALL COLLEGE OF ART 1213
ing with the Union was unlawful and violated Section
8(a)(5) of the Act.
In Allied Chemical & Alkali Workers v. Pittsburgh
Glass, 404 U.S. 157, 178 (1971), the Supreme Court
opined:
Section 8(d) of the Act, of course, does not im-
mutably fix a list of subjects for mandatory bargain-
ing. See, e.g., Fibreboard Corp. v. NLRB, supra at
220-221 [13 L.Ed. 2d 243, 244]; Richfield Oil Corp.
v. NLRB, 97 U.S. App. D.C. 383, 387-390, 231 F.2d
717, 723-724 (1956). But t does establish a limita-
tion against which proposed topics must be meas-
ured. In general terms, the limitation includes only
issues that settle an aspect of the employment relation-
ship between employer and employees. See, e.g.,
NLRB v. Borg-Warner Corp., 356 U.S. 342 [2 L.Ed.
2d 823, 78 S.Ct. 718] (1958). [Emphasis added.]
13(e). About 2 September 1980 and again about 6
January 1981 the Respondent unilaterally reduced
the rate of pay for certain bargaining unit employ-
ees by classifying and hiring such unit employees
as technical advisors, which classifications were
unilaterally created.
In its answer the Respondent denied the foregoing al-
legation, except that the Respondent admitted that "it
created a new classification of Technical advisor during
August 1980."
As admitted by the Respondent, it created a new clas-
sification of technical advisor in August 1980. Thereafter,
on 13 April 1981 the classification was abolished and
technical advisors were classified as "Adjunct Faculty."
A salary adjustment was made from the date of hire of
the employees in that classification. The classification of
technical advisor has not been reinstituted and there ap-
pears to be no reasonable expectation that it will be rein-
stituted. Thus, the controversy in regard thereto appears
to be moot and no remedy is needed or warranted. Tip
Top Roofers v. NLRB, 324 F.2d 773, 774 (5th Cir. 1963).
Cf. Bellkey Maintenance Co., 270 NLRB 1049, 1056
(1984), in which it is stated: "The Supreme Court stated
in NLRB v. Raytheon Co., 398 U.S. 25, 27 (1970), that a
violation becomes moot when a party can establish that
'there is no reasonable expectation that the wrong will be
repeated."
Accordingly, the above allegations are dismissed.
13(0. About 3 January 1983 the Respondent unilat-
erally instituted an across-the-board rule to dock
employees for missing faculty meetings. In its
answer the Respondent denied the foregoing alle-
gation.
The 1977-1980 agreement provides: "Faculty meetings
may be called during school hours for educational plan-
ning in a Department, combined Department or for com-
mittee work." During the period of the contract no fac-
ulty member was ever "docked" for nonattendance.
Thereafter, starting in August, on an intermittent basis,
memos were sent to faculty members docking their pay
for unexcused absence from faculty meetings."
Because the Respondent unilaterally changed the con-
tractual provisions governing faculty meetings by adding
a penalty for unexcused absences, the Respondent violat-
ed Section 8(a)(5) and (1) of the Act.
13(g). About 19 May 1983, 6 June 1984, and 1 July
1985, the Respondent promulgated, issued, and
thereafter has maintained revisions in the "faculty
handbook" which provide for: changes in the re-
quirements for promotion of faculty members, del-
egation of academic advising responsibilities,
changes in sick leave and sick leave reporting pro-
cedures, weekly minimum faculty campus office
hours, new methods of pay for certain types of in-
struction, ineligibility of certain unit employees
for certain fringe benefits, teaching load limits,
sabbatical leave, and other matters affecting the
terms and conditions of employment of unit em-
ployees.
In its answer the Respondent denied the foregoing al-
legation.
The foregoing unilateral changes in terms and condi-
tions of employment instituted by way of the faculty
handbooks come within the definition of mandatory bar-
gaining. By making such unilateral changes, the Re-
spondent has violated Section 8(a)(5) and (1) of the Act
(see supra).
13(h). About 1 April 1986 the Respondent, by its
agent Constance Phillips, unilaterally changed the
length of its teaching contracts for full-time facul-
ty members by offering unit employee Paul
Andrus, a one semester full-time teaching contract
instead of a teaching contract for the full academ-
ic year. -
In its answer the Respondent denied the foregoing al-
legation.
In its brief, the Respondent admits that in lieu of ter-
minating Paul Andrus, a probationary full-time faculty
member, it gave him a new contract that was 6 months
in length.
The Respondent argues that the General Counsel's al-
legations concerning Andrus are moot. As Andrus has
been promoted to assistant professor, it would be impos-
sible for the Board to fashion a remedial order that
would benefit Andrus for he has lost no compensation
and there is no expectation that the Respondent will
again offer Andrus a semester contract. I agree that the
matter is moot. (See supra.)
15. About 10 November 1980 the Respondent,
through its agent Phyllis Danielson, further re-
fused to bargain with the Union by denying union
16 For example, employee Mary Laham received the following memo
dated 31 August 1982: "According to the records, you did not attend the
Thursday, August 26th p.m. meetmg. Since it is part of your contractual
obligation to attend all opening in service and Faculty meetings, you will
not be paid for this unexcused absence"
1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
representation to employees during meetings on
grievances filed by such employees in the unit.
In its answer the Respondent denied the foregoing al-
legation.
A grievance procedure had been included in the 1977-
1980 agreement. After the withdrawal of recognition, the
Union was excluded as a participant in the grievance
procedure. The Respondent defends this position on the
ground that it was adhering to its position on the mana-
gerial issue and was thereby excused for altering the
grievance procedure or deviating from its terms without
bargaining with the Union. In the case of Indiana &
Michigan Electric Co., 284 NLRB 53 (1987), the Board
opined on this subject:
. . . we cannot see how the interest of preserving
industrial peace is served by a rule allowing one
party unilaterally to alter or abandon the procedure
by which the parties have customarily resolved day-
to-day worksite disputes. If either party thinks there
is a good reason to alter such procedures after con-
tract expiration, then it is free to make its sugges-
tions to the other party and seek to resolve any dif-
ferences through "the framework established by
Congress as most conducive to industrial peace."
Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
203, 211 (1964). Thus, in holding, as we do, that
neither party can unilaterally abandon their griev-
ance procedures, we do not, as the Chairman as-
serts, "insist upon rigid adherence to an expired and
truncated contractual dispute resolution system."
We merely insist that changes in that dispute resolu-
tion system be made only after the parties con-
cerned have agreed to them or otherwise adequate-
ly bargained over the matter.
Accordingly, the Respondent's conduct set out above
was in violation of Section 8(a)(5) and (1) of the Act.
16. About 1 and 2 April 1982, 5 and 26 November
1984, and 19 and 26 December 1984 the Respond-
ent, through its agent Phyllis Danielson, and by
letters to the unit employees, warned those em-
ployees that they faced possible job loss or re-
duced wages and benefits pursuant to enforcement
of the job standards described in paragraphs 13(a),
(c), and (d).
In its answer, the Respondent denied the foregoing al-
legations, except the Respondent admitted that "it issued
letters to certain faculty members on or about April 1
and 2, 1982, November 5 and 26, 1984, and December 19
and 26, 1984."
The letters listed above were issued to bring faculty
members in compliance with the statutory requirements
for the Respondent's granting B.F.A. degrees. As noted
above, although the matter of statutory compliance was
not negotiable, the effects of implementing such compli-
ance was a bargainable issue. The Respondent's failure to
bargain over the effects of the statutory implementation
with the Union and dealing with its employees violated
Section 8(a)(5) and (1) of the Act. See Medo Photo Supply
Corp. v. NLRB, 321 U.S. 678 (1944).
17. Since about 25 October 1985, the Respondent
has failed and refused to bargain with the Union
over the effects of the reorganization of its aca-
demic departments on unit employees.
In its answer the Respondent denied the foregoing al-
legations.
The Respondent's defense is that there were no conse-
quential effects from the departmental reorganization.
When area coordinators 17 were created for each divi-
sion, the Respondent refused to bargain over the in-
creased responsibilities and hours of work for the ap-
pointed coordinators.
The Respondent admits that a change occurred in con-
nection with the duties of coordinators, but claims that
the effect of the change was de minimis The fact that
there were at least eight coordinators involved does not
render the matter de minimis The Respondent violated
Section 8(a)(5) and (1) when it failed to bargain with the
Union over the effects of the reorganization of the coor-
dinators' jobs.
18.Since about 13 September 1985, the Respondent
has failed and refused to bargain with the Union
concerning bargaining unit work being performed
by the Respondent's supervisors.
In, its answer the Respondent denied the foregoing al-
legations.
This allegation is aimed against Don Williamson's pro-
motion to assistant academic dean, an admitted supervi-
sory job, in September 1985. Williamson continued to
teach classes after the promotion, which work fell within
the bargaining unit description. The Union asserts that
the Respondent was required to bargain over William-
son's teaching assignments. Although the Respondent
admits in its brief that Williamson taught classes, it
argues that it is excused from bargaining because in the
late 1970s Dean Bob Koffler taught one course. Because
it is not reasonable to conclude, as claimed by the Re-
spondent, that because a dean taught one course in late
1970 the Union had relinquished its right to bargain and
had given the Respondent carte blanche to assign unit
work to supervisors, I fmd that the Respondent violated
Section 8(a)(5) and (1) of the Act by assigning unit work
to the assistant academic dean, a supervisor, without bar-
gaining with the Union. Cf. Fry Foods, 241 NLRB 79, 88
(1979).
19(a). About 12 April 1982 and again on 5 January
1983 the Respondent, through its agent Phyllis
Danielson, by letter, promulgated a rule that the
Union could not hold its meetings on the Re-
spondent's premises or use mail boxes provided by
the Respondent on its premises.
17 "A coordinator would coordinate the subject matter within an area,
an example, drawing. And see that the content of the course was fully
covered by all faculty." The coordinator was responsible for supplies if
he were assigned to an area "such as a lab."
KENDALL COLLEGE OF ART 1215
19(b). The action described in paragraph 19(a) was
discriminatory in comparison with the Respond-
ent's treatment of other groups and individuals
and was a unilateral change in past practice with-
out giving the Union an opportunity to bargain.
In its answer the Respondent denied this allegation,
except that the Respondent admitted that it forwarded
letters to Ruth Lantinga about 12 April 1982 and 5 Janu-
ary 1983.
The General Counsel contends that the Respondent
violated Section 8(a)(5) of the Act by changing its past
practice of allowing the Union to hold meetings on its
premises and use faculty mailboxes provided by the Re-
spondent.
On 12 April 1982 the Respondent informed the Union
that it could no longer use the premises of the school for
union meetings. Prior thereto, the Union had used empty
classrooms for union meetings. Additionally, the Re-
spondent informed the Union the "policy not only
covers meeting faculties, but also prohibits use of any
Kendall facilities or equipment including faculty mail
boxes." (G.C. Exh 74) Likewise, prior to this new
policy, the Union used faculty mailboxes for union com-
munications (including the announcement of union meet-
ings). Although the policy apparently was not enforced,
the policy was never rescinded. Nevertheless, I find that
the unilateral institution of the policy and its continuance
was in violation of Section 8(a)(5) and (1) of the Act.
21. About the dates listed below, the Respondent,
through its agents Phyllis Danielson and Con-
stance Phillips, by the following conduct at the
Grand Rapids facility, bypassed the Union and
dealt directly with its unit employees.
21(a). On 21 June 1983, 6 June 1984, and 28 June
1985, the Respondent entered into new individual
teaching contracts providing for wage increases to
unit employees where such wage increases had
not been bargained for with the Union.
In its answer the Respondent denied the following al-
legations.
In the 1977-1980 contract it was agreed:
1.1, Recognition
Kendall acknowledges that a majority of the mem-
bers of Kendall's faculty have designated Faculty
[the Union] as their representative for bargaining
collectively with Kendall in respect to salary sched-
ules and other terms and conditions of employment.
Kendall recognizes Faculty as the sole bargaining
agency and representative of the teaching faculty.
Teaching agreements prior to the expiration of the
contract employed the following language ". . . accepts
such employment, under the terms and conditions of the
master agreement . . . subject to all provisions of the
Master Agreement." 18
15 A typical agreement:
After the Respondent withdrew recognition and the
1977-1980 agreement expired, the foregoing language
was deleted from its individual teaching agreements and
substituted the following language "subject to the terms
and conditions of such appointment and employment as
set forth in Part 1, 2, and 3 of the current Faculty Hand-
book." 1
THIS AGREEMENT made between DAVID WOLCOTT KEN-
DALL MEMORIAL SCHOOL (KENDALL SCHOOL OF
DESIGN); a Michigan Corporation of Grand Rapids, Michigan, first
party (hereinafter sometimes called the "School"), and Ferdinand
Martinez of Grand Rapids, Michigan, second party (hereinafter some-
times called "Martinez)"
WITNESSETH:
WHEREAS, Martinez is an instructor, and
WHEREAS, the School desires to secure the services of Martinez
asheremafter provided.
NOW THEREFORE, it is mutually agreed between the parties as
follows:
1. The School employs Martinez to instruct for one (I) semester
beginning January 4, 1980 thru May 5, 1980 and Martinez accepts
such employment, under the terms and condition ill' the Master
Agreement between the School and the Kendall Faculty Association
dated August I, 1977.
2. It is agreed that outside interests shall not interfere with the
School. It is agreed that the School may use photographs and infor-
mation about Martinez's professional background for brochures, cata-
logs, and news media.
3 Martinez agrees to instruct classes for (15) fifteen weekls] for the
Spring 1980 semester during the regular sessions of the School.
Hours will be assigned in accordance with Article VI, section 7.1,
paragraph C of Master Agreement.
It is further agreed that Martinez will attend staff day meetings for
the 1979-1980,school year as scheduled.
4. It is mutually agreed, subject to all of the provisions of the
Master Agreement that for the services aforesaid Martinez will be
paid a salary of $6,247.60 for 22 contact hours per week. For the se-
mester beginning January 4, 1980. For the period covered by the
Master Agreement said salary shall be computed on a prorate basis,
payable in equal installments every two (2) weeks with the regular
School payroll for a 4 month period and such payments shall be in
full compensation for Martinez's services.
Executed by the Employer this 17 day of December, 1979.
David Wolcott Kendall Memorial School
(Kendall School of Design)
By
Its President
By
Its Trustee
Executed by the Teacher this 17 day of Dec., 1979.
19 The following is a letter sent to Ruth Lantinga with the new teach-
ing agreement's language.
June 28, 1985
Ruth Lantinga
4541 Lantern Court N.W.
Comstock Park, Michigan 49321
Dear Ruth:
Kendall School of Design is pleased to offer you re-appointment
as a member of the full-tune teaching faculty for the 1985-1986 aca-
demic year. The following increases have been adopted effective
August 1, 1985:
1. The 1984-1985 salary chart has been revised to reflect a $300.00
increase at all levels.
2 All full-time ranked faculty salaries will move up one level on
the revised salary scale.
Your appointment is as indicated.
At level 13, your salary is $12,100 as an assistant professor with a
M.A. degree
Your full-time faculty contract -for the 1985-1986 academic year is
attached.
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After the withdrawal of recognition of the Union, the
Respondent dealt with employees individually concern-
ing rates of pay, hours, and other conditions of employ-
ment, and altered at will the terms of the 1977-1980
agreement without bargaining with the Union. Working
agreements were executed with individual employees,
providing for wage increases. Such unlawful conduct
violated Section 8(a)(5) and (1) of the Act.
After the withdrawal of recognition of the Union, the
Respondent dealt with employees individually concern-
ing rates of pay, hours, and other conditions of employ-
ment, and altered at will the terms of the 1977-1980
agreement without bargaining with the Union. Working
agreements were executed with individual employees,
providing for wage increases. Such unlawful conduct
violated Section 8(a)(5) and (1) of the Act.
21(b). On 15 April 1984 the Respondent met with
certain unit employees concerning their continued
full-time employment pursuant to the unilateral
changes described above in paragraph 13(a).
In its answer the Respondent denied the foregoing al-
legations.
The Respondent discussed and communicated with in-
dividual employees in respect to the statutory degree re-
quirements, which included the effects of their imple-
mentation. As noted above, discussion of matters in con-
nection with the effects of the statutory program with in-
dividual employees violated Section 8(a)(5) and (1) of the
Act.
21(c). On 13 April 1984 the Respondent offered cer-
tain unit employees full-time contracts for only
one semester and conditioned their further full-
time employment on their satisfying the unilateral
changes described above in paragraph 13(a).
In its answer the Respondent denied the foregoing al-
legations, except that the Respondent admitted "it issued
letters to certain faculty members on or about April 23,
1984."
s The Respondent's offer of teaching contracts for only
one semester varied from the terms of the 1977-1980
agreement and was a unilateral change in violation of
Section 8(a)(5) and (1) of the Act.
21(d), About 8 August 1985 the Respondent refused
to renew the full-time teaching contract of unit
employee Sandra Ringlever-Wick, and instead of-
fered her a part-time teaching contract because
she did not meet the requirements which were im-
posed as a result of the unilateral change above in
paragraph 13(a).
In its answer the Respondent denied the foregoing al-
legation, but admitted that it "did not offer a full-time
teaching contract for 1981-1986 school year to Sandra
Ringlever-Wick because of her failure to meet faculty
standards and instead offered her an adjunct contract."
The Respondent sent the following letter dated 7
August 1985 to Sandra Ringlever-Wick:
August 7, 1985
Sandra Wick
829 Orchard S.E.
Grand Rapids, Michigan 49506
Dear Sandra:
Kendall School of Design is pleased to offer you
an appointment as a member of the adjunct Teach-
ing faculty for the Fall semester, 1985 (August 26
through December 19, 1985).
Salary compensation for adjunct appointments is
$600.00 per credit.
Your adjunct faculty contract, Fall semester
schedule and the revised Faculty Handbook are en-
closed and should be consulted for the specific
terms and conditions of your appointment.
Your appointment is as indicated on the attached
schedule. Your salary computation is as follows:
Credits Hours
6

12
Highest Degree 1985 Fall Salary
KSD Certificate $3,600
If you agree to accept the terms of this appoint-
ment and class schedule, please return one signed
copy of the contract along with the completed tax
forms. However, should you decline employment,
please sign and return the form entitled "Rejection
of Offer of Appointment." Please return the appro-
priate document to the Academic Dean on, or
before, 5 p.m., Monday, August 19, 1985.
Sincerely,
Kendall School of Design
(Dr.) Phyllis I. Danielson
President
Wick signed the contract and thereafter on 26 March
1986 she requested maternity leave. Referring to the fac-
ulty handbook, the Respondent replied by letter dated 28
March 1986 that "in the Faculty Handbook adjunct fac-
ulty do not have benefits including sick leave." Thereaf-
ter, by letter dated 10 February 1987, she was informed
the Respondent that she was in arrears in the payment of
insurance premiums and was billed for past due premi-
ums in the amount of $370.
Under the 1977-1980 contract, there was no adjunct
faculty classification. The Respondent unilaterally estab-
lished it in the facility handbook." Under the 1977-1980
contract only faculty members who taught less than 6
hours were required to pay their own medical insurance
coverage.21
The Respondent's unilaterally classifying Wick as ad-
junct faculty; its offer of a semester contract tied to the
faculty handbook, rather than a full-time contract; its
unilateral setting of her wages, and exclusion from medi-
cal coverage provided in the 1977-1980 contract Without
20 Lantmga defined adjunct faculty as "Part time irregular"
21 The contract provides: "Faculty members who teach fewer than six
(6) hours may have group health insurance coverage subject to the
master policy, but at their own expense." (G.0 Exh. 5.)
KENDALL COLLEGE OF ART 1217
bargaining with the Union; and its direct dealing with
Wick were all in violation of Section 8(a)(5) and (1) of
the Act.
Complaint in Case 7-C4-26569
11. About 1 August 1986 the Respondent, by its
agents Don Williamson and Phyllis Danielson, at
its Grand Rapids installation, unilaterally institut-
ed teaching loads and pay rates for its adjunct fac-
ulty.
In August 1980, as part of its new faculty ranking
system, the Respondent unilaterally established a new
faculty classification, adjunct faculty. In the 1980-1981
faculty handbook the classification was described as fol-
lows:
The rank of Adjunct Faculty shall be granted to in-
dividuals whose major commitment of effort is not
at Kendall, but who, because of special expertise
and/or availability, may teach an occasional course
at Kendall on a semester-by-semester basis. Adjunct
Faculty do not normally participate in fringe bene-
fits offered ranked faculty.
Adjunct faculty salary was fixed at $600 per credit
taught or $20 per contact hour. (G.C. Exhs. 12, 143.)
In August 1986 the Respondent hired five new adjunct
faculty members, setting their wages and conditions of
employment tied to its faculty handbook without bar-
gaining with the Union. Because the Respondent was ob-
ligated to bargain with the Union regarding these mat-
ters, the Respondent, by refusing to bargain with the
Union, violated Section 8(a)(5) and (1) of the Act.
12. About August 1986 the Respondent, by its
agents Don Williamson and Phyllis Danielson, at
its Grand Rapids installation, unilaterally required
its adjunct faculty members to exceed the teach-
ing loads described in paragraph 11 without fur-
ther increase in pay rates.
The employees' contracts referred to in paragraph 11
above contained the following provision:
Kendall agrees to pay the Adjunct Faculty
Member $5,400.00 for teaching 18 contact hours per
week which constitutes 9 credit hours per semester.
Kendall reserves the right to schedule and assign
more than one studio course per contact hour
taught by the Adjunct Faculty Member without
modification of the Adjunct Faculty Member's rate
of pay. The Adjunct Faculty Member's pay shall be
pro-rated over the semester, payable in equal install-
ments every two (2) weeks. Such payments shall be
in full compensation for the Adjunct Faculty Mem-
ber's services and the Adjunct Faculty Member
shall not be entitled to any fringe benefits or other
compensation in addition to the compensation speci-
fied in this contract provision.
. . . .
Notwithstanding any provisions to the contrary,
the adjunct faculty member's teaching load for the
fall semester 1986 shall be to (9) credits.
According to Williamson, adjunct faculty members
were asked to take "an overload of one extra class." If
the person was willing, he or she was given the assign-
ment. Williamson testified further that a faculty member
Who accepted an assignment would receive an extra
$1800.
Because the foregoing deal was made directly with in-
dividual teachers in contradiction of the Union's bargain-
ing rights (this being in an area of mandatory bargain-
ing), it constituted a violation of Section 8(a)(5) and (1)
of the Act.
14.About 11 December 1986 the Union requested
by letter of the same date information from the
Respondent regarding the number of contact
hours adjunct faculty members were teaching for
the 1986 fall semester.
15.The information requested by the Union, as de-
scribed above in paragraph 14, is necessary for
and relevant to the Union's performance of its
function as the exclusive collective-bargaining rep-
resentative of the employees described above in
paragraph 8.
16.Since about 17 December 1986 the Respondent
has failed and refused to furnish the Union with
the information requested above in paragraph 14.
By letter dated 11 December 1986 the, Union request-
ed from the Respondent information regarding "the
number of contact and studio hours of all adjunct faculty
currently teaching classes at Kendall." The letter further
contained, "It has come to our attention that some ad-
junct faculty members may be teaching moire than the
maximum hours provided in the 1986-1987 Faculty
Handbook."
The Respondent refused to furnish the information be-
cause it insisted it had "no bargaining obligation" and
that the Union "failed to demonstrate the relevancy of
such request."
Not only does the information appear relevant and
necessary for the Union's performance of its duties as
collective-bargaining agent, but the Respondent's refusal
to furnish information based on its withdrawal of union
recognition is not well taken at this time. Thus, the Re-
spondent's refusal to furnish the requested information is
in violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act, and it will effectuate the purposes of the Act for
jurisdiction to be exercised herein.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act, the Respondent has engaged in unfair
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practices within the meaning of Section 8(a)(1) of
the Act.
4. The following constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act:
All teaching faculty, but does not include office em-
ployees, maintenance personnel, or supervisors. De-
partment heads are excluded from the bargaining
unit to the extent of their duties as department
heads. However, it is understood and agreed that
department heads who teach on a regular basis are
in the bargaining unit with respect to their compen-
sation, working conditions, rights, duties, and re-
sponsibilities as teachers.
5. At all times since 7 May 1980, the Union has been
the exclusive collective-bargaining representative of the
employees in the appropriate unit within the meaning of
Section 9(a) of the Act.
6. By refusing since 7 May 1980 to bargain with the
Union as the exclusive representative of the employees in
the above-described appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
7. By unilaterally changing terms and conditions of
employment of its employees without giving the Union
an opportunity to negotiate and bargain as the exclusive
representative of its employees in the appropriate unit
and by dealing directly with the employees in derogation
of the Union's right to represent its employees for the
purposes of collective bargaining, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1), (5), and (3) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that
it cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act.
It having been found that the Respondent has unlaw-
fully made unilateral changes in wages, hours, and other
terms and conditions of employment without bargaining
with the designated bargaining agent and has engaged in
direct dealings with its employees in violation of Section
8(a)(5) and (1) of the Act, it is recommended that, con-
cerning these changes 22 (more fully set out in this deci-
sion), the Respondent reestablish the status quo ante,"
except concerning those changes which have been bene-
ficial to the employees in the appropriate unit, and shall
bargain with the Union in respect to these changes as
well as the effects thereof. It is further recommended
22 These changes include, but are not limited to, the changes appearing
in G C. Exh. 12
22 As stated in Mash/on Freight Lines, 272 NLRB 427 (1984).
[I]n cases involving discriminatory conduct, the restoration of the
status quo ante is a necessary remedy as it is the Board's policy that
the wrongdoer, rather than the innocent victim, should bear the
hardships of the unlawful action
that a determination of whether the changes have been
beneficial to employees, whether employees have lost
benefits or money by reason of the changes, and whether
there is any money due and owing to employees and the
amount thereof be referred to the compliance stage of
this proceeding. See Ogle Protection Service, 183 NLRB
682 (1970).
In order to ensure that the Board can effectively moni-
tor and secure compliance with the Order, I recommend
that the Order include a visitatorial clause authorizing
the Board to engage in discovery under the Federal
Rules of Civil Procedure.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
ORDER
The Respondent, David Wolcott Kendall Memorial
School, a/k/a Kendall College of Art and Design,
Grand Rapids, Michigan, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Kendall
Faculty Association, MEA/NEA as the exclusive bar-
gaining representative of its employees in the appropriate
unit with respect to wages, hours, and other terms and
conditions of employment of the employees. The appro-
priate unit is:
All teaching faculty, but does not include office em-
ployees, maintenance personnel, or supervisors. De-
partment heads are excluded from the bargaining
unit to the extent of their duties as department
heads. However, it is understood and agreed that
department heads who teach on a regular basis are
in the bargaining unit with respect to their compen-
sation, working conditions, rights, duties, and re-
sponsibilities as teachers.
(b) Unilaterally making changes in its employees'
wages, hours, and other terms and conditions of employ-
ment concerning mandatcry subjects of bargaining or
alter or change the conditions of employment established
in the 1977-1980 working agreement with the Union
without bargaining collectively with the Union in ac-
cordance with the requirements of Section 8(a)(5) of the
Act.
(c) Unlawfully dealing directly with employees with
respect to employees' wages, hours, and other terms and
conditions of employment as long as the employees are
represented by the Union for the purpose of collective
bargaining within the meaning of the Act.
(d) Instructing employees that they should inform it if
they feel that they have been unduly pressured or co-
erced by the Union.
24 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulatioas, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all- objections to them shall be deemed waived for all pur-
poses
KENDALL COLLEGE OF ART 1219
(e) Denying the Union information relevant and neces-
sary to its performance of its statutory duties as collec-
tive-bargaining agent.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
above-described unit.
(b) Cease making unilateral changes and dealing direct-
ly with the employees in respect to their wages, hours,
and other terms and conditions of employment without
bargaining collectively with the Union in accordance
with Section 8(a)(5) of the Act.
(c) Restore the status quo ante as set forth in the
remedy section herein and otherwise fully comply with
the remedy.
(d) Supply the Union with the number of contact and
studio hours of all adjunct faculty members currently
teaching at Kendall.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at Grand Rapids Michigan establishment
copies of the attached notice marked "Appendix."25
Copies of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its duly authorized representatives, may
obtain discovery from the Respondent, its officers,
agents, successors, or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure. Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had upon any matter reasonably
related to compliance with this Order, as enforced by the
court.
IT IS FURTHER ORDERED that the complaints be dis-
missed insofar as they allege violations of the Act other
than found in this decision.
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of

25 If this Order is enforced by a Judgment of a United States court of the United States Court of Appeals Enforcing an Order of the National

appeals, the words in the notice reading "Posted by Order of the Nation- Labor Relations Board."