Lawrence Institute of Technology

National Labor Relations Board - Board Decisions

Apr 3, 1972

196 N.L.R.B. 28 (N.L.R.B. 1972)

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawrence Institute of Technology and Lawrence Insti-
tute of Technology Chapter , American Association
of University Professors . Cases 7-CA-8493 and 7-
RC-10322 _
April 3, 1972
DECISION , ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On October 27, 1971, Trial Examiner Ivar H. Pe-
terson issued the attached Decision in this proceed-
ing. On November 12, 1971, he issued the attached
Supplemental Decision recommending that certain
challenged ballots be opened and counted and further
recommending that the Union's objections be sus-
tained and, if appropriate, a new election be directed.
Thereafter, Respondent filed exceptions and a sup-
porting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
brief and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions only to the extent
consistent herewith.
THE UNFAIR LABOR PRACTICE CASE
The complaint alleges , and the Trial Examiner
finds, that Respondent, Lawrence Institute of Tech-
nology (herein also referred to as L.I.T. or the Insti-
tute), a private nonprofit college, violated Section
8(aX3) and (1) of the Act by refusing to renew the
employment contracts of three teachers because of
their efforts in behalf of the American Association of
University Professors (herein referred to as the
AAUP). Respondent contends that the evidence does
not support the Trial Examiner's conclusions. We find
merit in Respondent's contentions.
Background
Beginning in the fall of 1969, many faculty mem-
bers at L.I.T., including the three individuals involved
herein-Bruce Butske, Richard Brierly, and Kathleen
Stanley-became disenchanted with the existing form
of faculty representation and began discussing alter-
native forms of representation, including the possibili-
ty of seeking a collective-bargaining representative.'
1 At that time the AAUP, whose membership included about 40 per cent
During this same period, the L.I.T. administration
was becoming increasingly concerned with improving
the effectiveness and quality of its education in an
attempt to change a "good college" into a "great one."
In furtherance of this goal, the Institute adopted a
formal policy for granting tenure to qualified teach-
ers, and, beginning in the fall of 1970, a system of
written teacher evaluation was instituted. As ex-
pressed by Gilder Jackson, dean of academic affairs,
the purpose of the formal tenure policy was to insure
that only the "fittest of the fit" remain at L.I.T.
It was in the midst of both the increasing interest
in collective bargaining and the increasing emphasis
on quality instruction that Butske, Brierly, and Stan-
ley were notified that they had been refused reap-
pointment for the 1971-72 academic year.
The Terminations
As more fully set forth in the Trial Examiner's
Decision, the critical facts leading up to the termina-
tions in issue are as follows:
Butske
Professor Butske, an assistant professor of me-
chanical engineering, became a member of the L.I.T.
chapter of the AAUP in 1970, and sought to have the
AAUP become the faculty's bargaining representa-
tive, encouraged others to pursue collective bargain-
ing, and attended several open faculty meetings held
to discuss collective bargaining.
In October 1970, when the AAUP began its attempt
to become the faculty's bargaining representative,
Butske was appointed, along with Mrs. Stanley, to a
steering committee responsible for arranging an open
faculty meeting at which to present the AAUP posi-
tion to the entire faculty. Butske and Stanley arranged
the meeting for November 5, 1970, contacted mem-
bers of the faculty, and arranged for speakers.
Prior thereto and beginning in March and April
1970, Dr. Hans Erneman, director of the school of
engineering and chairman of the mechanical engi-
neering department, began receiving a series of com-
plaints from students concerning Butske's per-
formance. Specifically, the complaints alleged that
Butske's class presentations were incomplete, and that
the students were not provided sufficient information
and instructions to allow them to work his examina-
tions. In addition, students complained that Butske
of the L.I.T faculty , including department chairmen , was becoming increas-
ingly interested in collective bargaining for college professors This interest
in obtaining collective -bargaining representation resulted in the filing of a
petition by the AAUP in January 1971, and, ultimately, a Board -conducted
election on February 10, 1971
196 NLRB No. 8
LAWRENCE INSTITUTE OF TECHNOLOGY 29
occupied much of he class time with discussions un-
related to the course. In response, Dr. Erneman asked
the students to submit their complaints in writing so
he could discuss the matter with the instructor.
The complaints prompted a discussion between Dr.
Erneman and Dean Ryan, the dean of academic af-
fairs at that time,' but because Butske had already
received a letter notifying him of his reappointment
for the 1970-71 academic year, it was decided to allow
him to continue for the remainder of that year but to
terminate him thereafter.
The complaints continued, however, and Dr. Erne-
man began keeping a file on Butske 3 containing not
only a series of written complaints and petitions re-
questing Butske's removal, but also containing several
memorandums concerning Butske's unauthorized dis-
missal of classes and his refusal to furnish certain
information as requested by Erneman. As before, the
complaints cited Butske's discussion and criticism of
the faculty and administration in class , his unprofes-
sional attitude, his failure to use the prescribed text,
his poor class preparation and presentation, his errat-
ic class hours, and his inability to communicate the
subject matter to students. Also, the file contained
data showing that 70 per cent of the students in one
class, and 57.5 per cent of the students in another
class, had withdrawn from Butske's course prior to its
conclusion.
Thereafter, in October 1970, Dr. Erneman met with
Dean Jackson 4 again to discuss the complaints about
Butske. Dr. Erneman presented Jackson with all of
the material contained in the file, and also informed
him that Butske originally had been hired because of
a shortage of teachers to teach kineodynamics and
thermodynamics even though he did not possess the
necessary background. Erneman stated that Butske
had proven himself incompetent to teach those cours-
es and requested that he be replaced by someone more
qualified. Jackson, likewise, had received several
complaints from students, as well as a series of recent
complaints from other faculty members, to the effect
that Butske's former students did not receive the
proper background in his courses to prepare them
adequately for more advanced courses. In addition, it
had come to Jackson's attention that, during registra-
tion, students were avoiding signing up for courses
taught by Butske.
On the basis of the additional complaints, it was
agreed that no useful purpose would be served by
delaying Butske's termination; therefore, it was decid-
2 Also present at the discussion were Dean Jackson (then the assistant dean
of academic affairs ) and Wayne Buell, president of L.I.T.
3 From the record , it is unclear whether the file was started before or after
the initial discussion between Dr . Erneman and Dean Ryan.
4 Dean Jackson succeeded Dean Ryan as dean of academic affairs on July
1, 1970.
ed that Butske should be notified immediately of his
nonreappointment for 1971-72, subject to discussion
with other members of the department and approval
by President Buell.
On November 2, 1970, 3 days prior to the scheduled
open faculty meeting, Butske received a letter signed
by Dean Jackson notifying him of his nonreappoint-
ment.
On December 14, 1970, Erneman submitted a writ-
ten evaluation of Butske, concluding with a rec-
ommendation for dismissal.
While the record undeniably establishes that
Butske was an active union supporter and sought to
establish the AAUP as the faculty's bargaining repre-
sentative at a time just prior to, and during, the time
he was notified of his nonreappointment, the record
does not support a finding that these activities played
any part in the decision to terminate Butske.
Even accepting the Trial Examiner's conclusion
that Dr. Erneman was determined to build a record
against Butske to the extent that he maintained a file
on Butske's conduct, we find nothing in the record,
nor does the Trial Examiner point to anything, which
justifies a conclusion that Erneman's building a rec-
ord was related to Butske's union activitiy. Indeed, it
does not appear that Erneman began keeping the file
subsequent to any significant activity by Butske. While
the testimony shows that the file was started by Erne-
man in "March or April 1970," Butske's first signifi-
cant activity took place in the "spring of 1970" when
he attended the three open faculty meetings and
spoke in favor of collective bargaining. Not only is the
record unclear as to whether Butske's attendance at
the meetings preceded Erneman's initiating the file,
but it is equally unclear whether these meetings pre-
ceded the first discussion between Erneman and Dean
Ryan concerning Butske's qualifications. If a finding
of discriminatory motive is to rest almost entirely on
the timing of Respondent's conduct in relation to
Butske's union activities, it is incumbent upon the
General Counsel to establish the sequence of events
with sufficient clarity to support such a finding. On
the facts herein, all that can be found is that
Erneman's determination to build a record against
Butske was prompted by complaints of Butske's ina-
dequacy. Although Erneman admitted that no such
file had ever before been kept with regard to other
teachers, with Butske's inadequacies pointing to pos-
sible termination, maintaining such a file suggests lit-
tle beyond what may be regarded as sound personnel
action.
In addition, the General Counsel has failed to show
that the final decision to terminate Butske, made in
late October 1970, during a discussion between Erne-
man and Dean Jackson, was prompted in any way by
Butske's appointment, at approximately the same
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, to the steering committee to arrange the Novem-
ber 5 open faculty meeting. The Trial Examiner relies
on the fact that Butske was notified of his nonreap-
pointment "while this activity was in process," but he
apparently disregards without explanation the evi-
dence of continued complaints by both students and
faculty to Erneman and to Dean Jackson. While there
is, perhaps, suspicion generated by coincident timing,
there is credible evidence that the decision was
prompted by the increasing number and severity of
complaints. During this period, Dean Ryan was suc-
ceeded by Dean Jackson as dean of academic affairs
and it appears from the record that Dean Jackson was
intent on making termination decisions as soon as it
became apparent that termination was warranted.
Nor do we find persuasive, as did the Trial Examin-
er, Butske's testimony as to his conversation with Dr.
Odle, chairman of the department of social sciences,
to the effect that Odle informed Butske that the rea-
son for Butske 's termination was his union activity.'
Faced with conflicting versions of the conversation,6
the Trial Examiner accepts the version supplied by
Butske , stating that Butske was corroborated by Nan-
ny, Brierly, and Otton. Unlike the Trial Examiner, we
find no reliable "corroboration" in the testimony of
three individuals who were not even present when the
disputed conversation took place. Moreover, whatev-
er reason Odle gave Butske , it is entirely unlikely that,
as a low level supervisor in another department, Odle
would have first-hand knowledge of the reason for
Butske's termination. Indeed, Odle himself testified
that he had no such knowledge, but was merely pass-
ing on "information I had received because my office
happened to be at the end of the hall where the engi-
neering offices are." Whether characterized as "here-
say" as urged by Respondent, or, because of Odle's
supervisory status, a "declaration against interest"
and thus an exception to the hearsay rules, Butske's
version of the Odle conversation is too unreliable to
impute a discriminatory motivation to Respondent'
While the General Counsel and the Trial Examiner
rely heavily on the timing of the termination, that
evidence, as heretofore indicated, is insufficient to
sustain the General Counsel's complete burden of
s In several places in his Decision, the Trial Examiner erroneously refers
to the conversation as having taken place on January 29, 1971, although all
who testified to the conversation stated that it occurred in November or
December 1970.
6 According to Odle, he told Butske that he was terminated because "he'd
left himself open for this by discussing matters in the classroom and in
engaging in excessive discussions of matters that were not pertinent to the
subject being taught."
7 Equally unpersuasive are the Trial Examiner's remaining bases for find-
ing discrimination, that is- (1) no record of complaints in several previous
years; and (2) the submission of the written evaluation 7 weeks after Butske
was notified of his nonreappomtment. There is evidence that Dr. Erneman
received complaints as early as 1969; and the evaluation was submitted in
December together with the evaluations of others in the department at the
request of Dean Jackson.
proving a violation of the Act in the face of substan-
tial evidence of legitimate cause for Butske's termina-
tion. The complaints against Butske and his
inadequacies are unchallenged and, as previously in-
dicated on this record, it is impossible to find that
Butske was engaged in any substantial organizational
activity prior to the administration's initial action
with respect to his shortcomings.
In these circumstances, we conclude that the Gen-
eral Counsel has not sustained the requisite burden of
proof, and we are unwilling to find that Professor
Butske was refused reappointment in violation of Sec-
tion 8(a)(3) of the Act.
Brierly
Brierly, an instructor in the mathematics depart-
ment, was also active in the local AAUP chapter dur-
ing the period of growing interest in collective
bargaining, and he discussed union representation
with numerous faculty members. He distributed
throughout the college pamphlets provided by the
American Federaion of Teachers (AFT), solicited au-
thorization forms, and sought to get the AFT on the
ballot in the upcoming election.
Following an open faculty meeting in January
1971, Brierly discussed collective bargaining with Dr.
Richard Marburger, director for the college of arts
and sciences, during which discussion Brierly in-
formed Marburger that he was a staunch believer in
unions and that the faculty needed union representa-
tion because the administration had been guilty of
many "unethical practices" toward the faculty.
On January 29, 1971, Brierly was summoned to the
office of his department chairman, Dr. Nace, w'.cre
he was informed that he would not be reappointed for
the 1971-72 academic year. When Brierly asked Nace
for the reasons for his termination, Nace informed
him that, although he knew Brierly was a good teach-
er, he had received several complaints from students
to the effect that they could not communicate with
him. Brierly responded that the real reason was his
union activity, but Nace denied any knowledge of
Brierly's activity.
According to Respondent's witnesses, student com-
plaints concerning Brierly's performance began dur-
ing his first year at the Institute when several students
complained to Nace about Brierly's inability to "get
through to them." Nace asked the students to discuss
the matter with Brierly, but when they returned and
reported that they had gotten no satisfaction, Nace
brought the matter to Brierly's attention.
The following year, Nace continued to receive com-
plaints concerning Brierly's performance, including
comments that students were refusing to register for
Brierly's courses.
LAWRENCE INSTITUTE OF TECHNOLOGY 31
During a conference between Nace and Dean Ryan
to determine whether Brierly would be retained for a
second year, it was agreed that Brierly's contract
would be delayed pending a discussion between Brier-
ly and Nace. Nace discussed the matter at length with
Brierly, after which Nace was satisfied that Brierly
would make an effort to improve, so Brierly was of-
fered a contract for the second year.
During the following year Brierly's performance
improved and his contract was renewed.
In December 1970, Nace submitted a written evalu-
ation of Brierly's performance, in which he concluded
that Brierly was "certainly a qualified instructor" and
recommended that Brierly receive the standard raise.
He also recommended, however, that any decision
concerning Brierly's rank and tenure be delayed until
the following year.
The evaluation ultimately reached Dean Jackson,
who added the comment that "We can't delay all
decisions on rank & tenure until next year. Brierly was
warned about his approaches last year. Prof. Nace
and Dr. Marburger asked to review this once more."
In early January 1971, a meeting was held among
President Buell, Dean Jackson, Dr. Marburger, and
Professor Nace to evaluate members of the math-
ematics department to determine which ones would
be offered contracts, raises , and so forth for the fol-
lowing year. Jackson expressed concern over the rate
of failures and withdrawals in math courses and a
series of complaints from faculty members in other
departments that students did not demonstrate a suf-
ficient grasp of math. Jackson stated that steps should
be taken to improve the math department through
replacement of existing personnel with more qualified
instructors. All nontenured members of the math fac-
ulty were discussed and it was decided that the least
qualified member of the department would not be
reappointed. Nace recommended that Brierly be ter-
minated, but Marburger felt that Brierly's perfor-
mance was better than another instruc-
tor's-Nanny-and that Nanny should be terminated.
Nace reviewed the complaints he had received con-
cerning Brierly, and the others ultimately agreed that
Brierly should be terminated, in view of the rec-
ommendation of his department chairman. The deci-
sion was then discussed with the tenured members of
the math faculty, and thereafter Brierly was notified
of his nonreappointment.
As in the case of Professor Butske, we view as insuf-
ficient the evidence that Brierly was refused reap-
pointment because of his protected activity.
Uncontradicted evidence shows the administration's
determined effort to improve the mathematics depart-
ment, in a manner requiring termination of the least
qualified member of the math faculty, at a time con-
temporaneous with a general effort to improve the
quality of education at L.I.T. Indeed, the Trial Exam-
iner recognizes this fact, yet he fails to give due def-
erence to the choice made by Buell, Marburger,
Jackson, and Nace, even in the face of unrebutted
evidence that all members of the math faculty were
discussed, and Brierly was chosen, albeit narrowly,
for termination. Against the background and the Trial
Examiner's correct conclusion that the record furnish-
es no basis for assessing the comparative ability of
Brierly against others retained, any finding that Brier-
ly was discriminatorily selected must rest on sheer
speculation.
The Trial Examiner also relies on the Odle-Butske
conversation, supra, as evidence of unlawful motive
for Brierly's termination. In this conversation, Odle
allegedly told Butske that the administration was
"trying to get someone in the math department." For
the reasons previously expressed, we place no reliance
on this alleged statement .8
In addition to the General Counsel's failure to re-
but the evidence of just cause, his reliance on the
timing of Brierly's termination is weakened by the
unrebutted evidence that termination decisions were
made in all departments near the end of January each
year in order to comply with the provisions of the
faculty handbook requiring that notice of nonreap-
pointment be given by February 1 of the year the
appointment is to end. The timing of the decision
appears to bear a stronger relationship to the schedule
established in the faculty handbook than to Brierly's
concerted activity .9
For these reasons, particularly in view of the record
evidence showing other instructors in the math de-
partment were engaged in union activity, Brierly's ad-
mitted deficiencies, Respondent's legitimate decision
to replace the least qualified math teacher, and the
absence of evidence showing that any other instructor
in the department was less qualified than Brierly, we
are unable to conclude that the General Counsel has
established that Brierly's termination was the result of
his concerted activity.
8 We also note that the Trial Examiner erroneously places the date of
Odle's remarks as January 29, 1971 , the same day Brierly was notified. Yet
the remarks, even if made as reported by Butske, were made in late Novem-
ber or early December 1970; thereafter, Nace, chairman of the department,
recommended Bnerly's retention , hardly indicative that the administration
at the time of Odle's alleged remarks was "out to get" Bnerly As set forth
in fn . 9, infra, Nace's change of mind in January seems to have been based
on intervening events.
9 Nor do we regard with suspicion the fact that Nace urged termination
of Bnerly in January 1971, only I month after recommending his retention.
We are satisfied that Nace 's changed attitude resulted from continued com-
plaints about Bnerly's methods, the small number of students registering for
Brierly's classes , his belief that Bnerly was falling back into the pattern of
behavior demonstrated earlier in his career , and Dean Jackson's insistence
that at least one member of the math faculty be terminated and his reluctance
to delay the tenure decision in view of Bnerly's prior warnings.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stanley
Mrs. Stanley , an instructor in the department of
language and literature , was an active participant in
the affairs of the faculty senate as well as the AAUP.
She served as vice president of the L.I.T. chapter of
the AAUP during the 1970-71 academic year and was
an outspoken supporter of the AAUP's efforts to be-
come the faculty's bargaining representative. As a
member of the AAUP steering committee , she helped
arrange the November 5, 1970, open faculty meeting,
at which she gave an account of the faculty senate's
ineffectiveness in representing the faculty and urged
union representation as the only solution.
On January 28, 1971 , Stanley was called to the of-
fice of Dr. Angelescu, her department chairman,
where she was informed that she would not be re-
appointed for the 1971-72 academic year . Angelescu
explained that her termination was the result of a
negative evaluation he had given her, based on his
belief that she was threatening his position as the
department chairman because of her failure to coo-
perate with him. He stated that she was an ineffective
teacher, as evidenced by numerous complaints from
students in a reading improvement class she had
taught. He also noted her failure to turn in attendance
sheets during the 1969-70 academic year, although he
admitted that this was a "petty point. " In summary,
he explained that his evaluation was based largely on
her lack of cooperation.
Prior to Stanley's receiving notification that she had
not been reappointed,' Dr. Angelescu submitted two
written evaluations of Stanley to Dr . Marburger. The
first , dated December 5, 1970, strongly urged that she
be denied tenure and terminated as soon as feasible.
Angelescu characterized Stanley as a "disruptive in-
fluence" within the department and stated that "rare-
ly is she cooperative and she often flouts de-
partmental and college policy in various subtle
ways." Angelescu cited her refusal to turn in atten-
dance sheets, although she had been requested to
comply with the college policy in this regard . Angeles-
cu noted that her usefulness to the department was
limited, stating that in assigning her to teach courses,
he had to "keep in mind not where she can do the
most good for LIT, but where she will do the least
damage." He noted that in the past year she had
taught two classes in reading improvement, in which
she gave 71 per cent of the students in one class and
70.5 per cent of the students in the other class grades
of D or F, resulting in several complaints and his
decision not to assign her that course again. Likewise,
Angelescu pointed to his reluctance to assign her to
teach a course in advanced composition because of
her previous policy of meeting the class only 1 hour
per Week rather than the scheduled 3 hours . He also
noted that he had received numerous adverse com-
ments about her and students ' reluctance to register
for her classes ; and stated that "she doesn't seem to
understand the needs of a private college."
On December 15, Angelescu submitted another
evaluation of Stanley , prompted by an incident fol-
lowing the first evaluation which he felt further evi-
denced her lack of cooperation . The evaluation stated
that Angelescu had requested that members of his
department keep folders of student themes and make
the folders available for his examination . All members
of the department agreed to comply with the request
except Stanley, who questioned Angelescu's motives
for wanting to see the themes and refused to maintain
such a folder . In addition , Angelescu stated that Stan-
ley was further attempting to discredit his effective-
ness as department chairman by counseling others
that they were under no obligation to comply with the
request and by threatening to have him investigated
by the faculty senate. The evaluation concludes that
Stanley's conduct has the tendency to limit
Angelescu's effectiveness as chairman by inhibiting
him from taking steps which he feels are in the best
interest of the college, and again urges that her con-
tract not be renewed.
After receiving the two evaluations, Marburger
submitted them to Dean Jackson together with his
comments that, in light of Angelescu 's detailed evi-
dence of her disruptive behavior , a serious considera-
tion should be given to terminating Stanley.
Thereafter, in late January 1971, a meeting was
held among President Buell , Dean Jackson , Marbur-
ger, and Angelescu to discuss salary, contract, and
tenure decisions for the language and literature de-
partment . Each member of the department was dis-
cussed and, in discussing Stanley , it was agreed that
the relationship between her and Angelescu was intol-
erable and that it would be impossible to retain her.
Subsequently , she was notified of her termination.
Unlike the Trial Examiner, we find that while the
timing of the discharge may creat suspicions , Respon-
dent has rebutted any inference created thereby by
providing legitimate grounds for Stanley's termina-
tion which the General Counsel has not shown to be
pretextual.
The facts upon which Respondent relies to demon-
strate Stanley's lack of cooperation are not chal-
lenged , and there is no evidence that any other
member of the English faculty who was retained was
guilty of any similar, or greater, indiscretions . Since a
reduction in the size of the English faculty was con-
sistent with reduced credit requirements, it would
seem that someone in the department had to go, and
from this record , it appears that Stanley was the logi-
cal choice.
Bearing in mind the general efforts to upgrade the
LAWRENCE INSTITUTE OF TECHNOLOGY
standards of instruction at the Institute, the evidence
shows that, in several respects, Stanley did not meet
that standard. Although Angelescu had once recom-
mended that Stanley be reappointed in 1969-70, at
that time he had been Stanley's department chairman
for only 3 months. Subsequently, Stanley refused to
cooperate with Angelescu in several respects, and per-
formed her duties in a manner regarded by Angelescu
as ineffective. We are thus persuaded that Stanley's
discharge was for these reasons, rather than for her
union activity.
Accordingly, for the reasons set forth above, we
find that Respondent did not violate Section 8(a)(3)
and (1) of the Act by refusing to reappoint Butske,
Brierly, and Stanley, and we shall dismiss the com-
plaint in its entirety.
The Objections and Challenges
Challenges
The election herein, held on February 10, 1971,
resulted in 22 votes cast for Petitioner, and 26 votes
against Petitioner, with 14 challenged ballots.
Of the 14 challenged ballots, 10 were challenged by
the Petitioner on the ground that the individuals in-
volved were supervisors. At the hearing, counsel for
Respondent accepted these challenges, and the Trial
Examiner found the individuals to be supervisors. No
exceptions were filed to this finding, and we hereby
sustain the challenges to those ballots.
The remaining four individuals were challenged by
Respondent on the ground that their contracts for
employment would not be renewed for the 1971-72
academic year. We find it unnecessary to resolve these
challenges since they are now insufficient in number
to affect the results of the election.
Objections
The Petitioner contends in its objections that
Respondent 's unlawful termination of Brierly and
Stanley intimidated , coerced , and restrained other
members of the faculty in their support of the AAUP.
Having found that these individuals were not unlaw-
fully terminated , we find no merit in Petitioner's ob-
jections.
As Petitioner has failed to receive a majority of the
valid votes cast , and as the remaining challenges are
nondeterminative , and all objections have been over-
ruled , we shall certify the results of the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
33
tions Board hereby orders that the complaint herein
be, and it hereby is, dismissed in its entirety.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of valid votes
have not been cast for Lawrence Institute of Technol-
ogy Chapter, American Association of University
Professors, and that said labor organization is not the
exclusive representative of the employees in the unit
found appropriate within the meaning of Section 9(a)
of the National Labor Relations Act, as amended.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
IvAR H . PETERSON. Trial Examiner : This case was tried at
Detroit, Michigan, on June 28 to July 2, 1971, both dates
inclusive . The charge was filed by the AAUP, LIT Chapter,
on February 16, 1971. The complaint was issued on April
20, being consolidated with a Report on Determination
Challenges and Objections to an election held in Case 7-
RC-10322 on February 10, 1971. The primary issues in the
complaint case are whether the Institute , sometimes refer-
red to as LIT, unlawfully refused to renew the employment
contracts of three professors for the 1971-72 academic year,
for the reason that they had joined and assisted the AAUP
and had engaged in concerted and organizational efforts on
its behalf, thereby violating Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended.
On August 2, 1971 , the Institute filed a motion to reopen
the hearing to receive testimony regarding a conversation
between Dr. Thomas Odle, who had been unavailable dur-
ing the hearing, and Professor Bruce Butske , one of the
alleged discriminatees . Over the opposition of counsel for
the General Counsel , I granted the motion and held the
further hearing on August 19.
Upon the entire record, including my observation of the
demeanor of the witnesses , and a careful consideration of
the able brief filed on October 4 by counsel for the Respon-
dent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Institute is engaged in the operation of a private
nonprofit institution of higher learning, with primary em-
phasis on technical subject matters relating to engineering.
During the calendar year 1970, the Institute realized gross
revenue from all sources (excluding contributions from the
grantor, under the terms of which receipts are not available
for use in connection with operating expenses) in excess of
$1 million. During the same period, the Institute purchased
books, supplies, and other goods and materials in excess of
$50,000, which were transported and delivered to its prem-
ises directly from points outside the State of Michigan. The
Institute, in, its answer, admitted the jurisdictional allega-
tions. I find that the Institute is an emplo er engaged in
commerce within the meaning of Section 2((2), (6), and (7)
of the Act. I further find that the AAUP is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE UNFAIR LABOR PRACTICES Mrs. Stanley did turn in attendance records to her depart-
ment chairman. She testified that, from her own knowledge,
the majority of the faculty members did not turn in atten-
dance records and she named several falling into this cate-
gory. In addition, Mrs. Stanley kept her regular weekly
office hours in order to be available to consult with students.
She regularly attended faculty meetings. In the academic
year 1969-70, she had received a student evaluation report
of her performance which, in her opinion, was favorable.
During the fall of 1969, in connection with a reading im-
provement class which she was teaching, Mrs. Stanley re-
ceived some complaints concerning grades from some
students who had failed. She offered to, and did, give them
a new test, but the results of the retest were not significantly
changed except that one of the eight students taking the
retest failed to achieve a passing grade.
On Thursday, January 28, Mrs. Stanley was asked to
come to the office of her department chairman, Dr. Ange-
lescu. She testified that he informed her "that he had given
me a negative evaluation last year in December. When I
asked him why he said 'It is my opinion that you are threat-
ening my position as the department chairman."' Thereu-
pon, Mrs. Stanley asked Dr. Angelescu why, or in what
respect, she was "threatening his position as a department
chairman" and he said the one thing that had determined
this in his mind was the fact that he had requested the
faculty members of the English department that he be per-
mitted to investigate the files of student themes. This re-
quest had been made quite some time previously, and Mrs.
Stanley at that time had asked Dr. Angelescu why he wished
to look at the themes, and she had not turned them over to
him. Additionally, the subject of taking class attendance
was also raised during this meeting although, so Mrs. Stan-
ley testified, Dr. Angelescu acknowledged that this was "a
petty point." Furthermore, Dr. Angelescu said that he had
received many complaints with respect to the reading im-
provement classes, but when she asked him why he had not
told her about this previously he stated that he had not
wished to hurt her feelings.
Concerning the complaints by students, Dr. Angelescu
stated that he took them with a grain of salt, in that he
realized that there was no relatively effective way to evalu-
ate teachers in the English department. Mrs. Stanley testi-
fied that she had never refused to cooperate with Dr.
Angelescu, although she had felt free to express differing
opinions.
Mrs. Stanley became affiliated with the AAUP in the fall
of 1968 and, thereafter, regularly attended AAUP meetings.
During the academic year 19771, she was vice president
of the LIT Chapter. As a member of the steering committee
of the AAUP, Mrs. Stanley in 1970 had noticed that Dr.
Angelescu did attend meetings, and, in the fall of 1970,
when the members were discussing collective bargaining by
the AAUP, Dr. Angelescu stated that if he had known this
subject was to be discussed, he would not have come, be-
cause "I have to think of my Job you know."
After Mrs. Stanley was told by Dr. Angelescu that she
would not be reappointed, she met with Dean Gilder Jack-
son in the latter's office. According to her, Dean Jackson
"just gave a generalized account of its process that the Ad-
ministration goes through to determine whether or not a
person would be reappointed." Moreover, he stated that if
a chairman of a department recommends that a teacher not
be promoted or given tenure, the result is that the person
probably will not be reappointed.
On November 5, 1970, a meeting was held to air views
regarding faculty affiliation with the AAUP and collective
bargaining in general. Mrs. Stanley was one of the sched-
A. Introduction
This case , as represented during the hearing , is something
in the nature of a "first" in regard to the application of the
Act's unfair labor practice provisions of the Act to a non-
profit educational institution and three of its professors.'
While it obviously is not a "run of the mill" case, I am of
the view that the terms of the Act are equally applicable in
the present situation; the only difference that I can discern
is that the Respondent and the individuals involved are not
"run of the mill" persons. These professors, with varying
degrees of experience both at the Respondent's estab-
lishment and elsewhere, were employed in different capaci-
ties: Professor Bruce Butske was employed in the spring of
1965, and at the time of the nonrenewal of his contract, was
a full-time assistant professor in the Mechanical Engineer-
ing Department. Professor Richard Bnerly was originally
employed in September 1967 as an instructor in the Math-
ematics Department. Mrs. Kathleen Stanley was employed
in 1967 as an instructor of language in the Language and
Literature Department, first as a part-time employee and in
1968 as a full time instructor. Prior to her employment at
the Institute she had taught for 3-1/2 years in a Lincoln
Park, Michigan, high school and had also taught part-time
in the Highland Park Junior College while she was teaching
part-time at the Institute.
The essential facts in this case involve the professional
capability of the three alleged discriminatees and, necessar-
ily, requires the evaluation of their testimony and that of
their superiors, including President Wayne Buell. The case
obviously involves scrutiny of the performance of the teach-
ers concerned. Moreover, it requires an assessment, with
regard to the particular courses taught by them, of their
relationship to the students attending their classes and,
more particularly, in the case of Mrs. Stanley, the appraisal
given her by the dean of her department, Dr. Victor Ange-
Iescu , who relatively shortly before her contract was not
renewed had assumed that position.
B. The Terminations
1. Mrs. Kathleen Stanley
At the time Mrs. Stanley was hired in 1967, the Institute
had no tenure policy, and the chairmen of departments
made oral evaluations of their staff. However, in the fall of
1970 the policy was changed so as to require chairmen to
make written, detailed evaluations of teachers. On January
28, 1971, Mrs. Stanley was notified that her contract would
not be renewed. Before being so notified, Mrs. Stanley had
not received any written or oral reprimand from her superi-
ors. According to her, she followed the rules and policies of
the school with one exception: she did not turn in atten-
dance sheets for the year 1969-70 although she did, in fact,
keep such records.
Mrs. Stanley was chairman of the Faculty Senate, com-
posed of five members , for the academic year 1970-71.
While a member of the Faculty Advisory Board (which
preceded the Senate) the Advisory Board had asked the
Administration of the school to drop its policy of requiring
teachers to keep attendance records. However, in 1970-71,
1 The Board asserted jurisdiction over institutions such as the Respondent
in two cases decided April 20, 1971 See C W Post Center of Long Island
University, 189 NLRB No 109 and Long Island University (Brooklyn Center),
189 NLRB No 110
LAWRENCE INSTITUTE OF TECHNOLOGY 35
uled speakers. As the record demonstrates, she gave an
account of the history of faculty government at the Institute
and stated, in substance, that it had been very ineffective in
reaching decisions affecting school policy. Moreover, she
advocated that the only solution to this problem was for the
faculty to obtain union representation. According to Mrs.
Stanley's undenied testimony, a substantial number of di-
rectors of schools and department chairmen were at the
meeting. Shortly prior to the November 5 meeting, Mrs.
Stanley obtained information that Professor Butske would
not be reappointed. In conversation with her, Butske asked
that the Faculty Senate obtain written reasons for his non-
reappointment, but stated if this were not possible he would
be satisfied with oral reasons. Professor John Goodenow
and Mrs. Stanley discussed the matter with Dean Jackson,
who stated to them that he would be glad to discuss the
matter with Professor Butske.
After the meeting, Dean Jackson appointed a workload
committee and, accordin* to Mrs. Stanley, stated that this
committee was designed to combat the threat of collective
bargaining." The committee consisted of six faculty mem-
bers appointed by the Faculty Senate and five members
appointed by Dean Jackson. Some of the members were
chairmen of departments and heads of schools.
On December 15, in response to a faculty newsletter dat-
ed December 7, Dean Jackson issued a public statement
criticizing the faculty for not having consulted with anyone
in the college administration before making proposals with
respect to sabbatical leaves and promotions. Among other
things, he said that such procedure was a "hell of a way to
run a railroad," and that he feared for the future of LIT if
the Faculty Senate, in fact, represented the faculty.
During the November 5 meeting, attended by all invited
faculty, Dean Jackson stated that while it would be "nice"
to have a sabbatical leave policy, "there had been no study
made by the Administration" of whether such a policy was
financially feasible. He further stated that he had discussed
Professor Butske's request to have the reasons for his termi-
nation stated in writing with two members of the Faculty
Senate , but had informed them that the policy of the school
was not to give reasons in writing.
Mrs. Stanley stated that before contracts for the year
1971-72 were sent out to members of the faculty, she asked
Dean Jackson if the financial proposals that the Senate had
worked out could be discussed. She and Dean Jackson set
a date for late January or early February to engage in such
discussions. However, there was no discussion between
them prior to the date the new contracts were sent out.
Mrs. Stanley testified that on January 28 she received a
letter from Dr. Angelescu stating that her contract would
not be renewed. Additionally, she testified without contra-
diction that in prior years she had received a raise each year.
2. Joseph Brierly
Brierly was employed by the Institute in September 1967,
as an instructor in the mathematics department, at a salary
of $7,200 per academic year. When terminated, his salary
was $9,200 per year. He had obtained his Bachelor's degree
from Wayne State University in 1963; in 1966 he completed
his work for and received a Master's degree in Arts and
Sciences. At the time of his termination he had obtained 59
credits toward his Doctorate degree. He taught many cours-
es in the mathematics department, including algebra, trigo-
nometry, calculus I through IV, and some industrial
management mathematics courses.
Professor Brierly became affiliated with the AAUP in
September 1967, and thereafter was active in its behalf.
Prior to the representation election in February, Brierly
passed out pamphlets for the American Federation of
Teachers, stating that he did so because there were no
AAUP pamphlets available. He obtained authorization
cards from several faculty members and also spoke to some
of the student faculty members, particularly one Al Daniel.
Shortly before the representation election, Brierly met Pro-
fessor Zimmersman in the hall and they engaged in conver-
sation. During this discussion Zimmersman stated that he
thought a union was a good idea but, according to Brierly,
added that it was not good for the Institute "because it was
a private school." Zimmersman explained that the Institute
could not have a union on the campus and also survive
financially. Brierly, in this conversation, stated that he was
in favor of unionization and "thought we needed one to deal
with the Administration." Zimmersman did not testify.
About the middle of January 1971, some 2 weeks before
the election, Brierly attended a faculty meeting at which the
pros and cons of collective bargaining were presented by
two speakers. Al Su berg, an official of the National
AUUP, spoke in favor of collective bargaining while a Mr.
Choitz, an official of the Institute, gave the Administration's
point of view. Among other things, Choitz stated that the
faculty had "no need for [a] foreign agent" to represent
them, as he felt that the Faculty Senate was capable of doing
the job.' The day after the meeting, Brierly had a talk with
Dr. Richard Marburger, the Director of the School of Arts
and Sciences. An instructor named Chessman was present.
The latter did not testify.
Brierly, so he testified, told Dr. Marburger that he "was
a staunch believer in the union" and had been of that view
since he was a young man. He further stated that the faculty
"needed a union to represent them because the Administra-
tion was guilty of many many unethical practices against"
the faculty. Additionall, he stated that the Institute needed
a standard faculty salary schedule.
Professor Butske, on January 29, informed Briery of a
conversation he had with Dr. Odle in the parking lot, in
which Odle told Butske that the Administration was "trying
to get somebody in the Math Department for the union
activities," and added that Odle stated "they were having a
hard time getting something on the individual in question"
because he was doing a good job. The same day, Brierly met
Professor Nace in the hall and the latter asked Briery to cut
his class short by a few minutes, and come to his office. In
that conference, Professor Nace told Brierly, "I am sorry to
inform you but it is my duty to tell you that you won't be
reappointed for the next academic year." Brierly asked for
the reasons, and Nace stated that "they" had been receiving
complaints from students to the effect that they could not
communicate with him. During this conversation Nace told
Brierlyy that he was "a good teacher." Brierly commented
that `the real reason I was fired was union activity;" and
Professor Nace responded that he did not "know anythin
about union activity." Bnerly was then handed a letter of
separation signed by Dean Jackson. Some months later,
Bnerly wrote Dean Jackson requesting that the reasons for
his termination be put in writing, but Dean Jackson refused
to do so.
3. Bruce Butske
Professor Butske was employed by the Institute in the
spring of 1965, and initially taught as a lecturer part-time in
2 Choitz, according to the undenied representation made during the hear-
ing by Counsel for the General Counsel, was present in the audience through-
out the hearing. He did not testify.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the mechanical engineering department in the evening
school . Thereafter, he became a full-time assistant profes-
sor. In the succeeding 2 academic years he received a renew-
al contract . In the spring of 1967, Professor Butske resigned
in order to continue work on his Doctor 's degree at the
University of Michigan . In the fall of 1968 , Professor Nace,
chairman of the mathematics department , telephoned
Butske and indicated that Professor Adams , a member of
the faculty , was leaving and stated that he would like to
have Professor Butske come and teach the courses . Butske
accepted and assumed a lectureship in mathematics. In
1969, Butske applied for a full-time _position either in the
School of Arts and Sciences or the thematics and Phys-
ics. He was offered the position of assistant professor of
mechanical engineering for the academic year 1969-1970,
and his contract was renewed for the academic year 1970-
71.
By letter dated October 30, 1970, Professor Butske was
informed by Dean Jackson that his appointment would not
be renewed "after the expiration of the 1970 -71 academic
year." The letter also stated that it was "the policy of the
College not to make the reason for nonreappointment a
matter of public record ," but advised that the chairman of
Butske's department , Professor Erneman , would "review
your situation in detail and explain the factors which had
entered into this decision."
Professor Butske testified that he had never received any
written warning with respect to his work performance nor
had he been given any warning or notification about not
taking class attendance . In the 1969-70 academic year, the
student government made evaluations of many of the teach-
ers and Butske received a copy of the evaluation given him
during the second quarter of the year . Butske testified that
he received an average grade of B.
On November 10, following receipt of his notification of
nonrenewal of contract, Butske addressed a letter to the
executive committee to the local chapter of AAUP and sent
a copy to the Faculty Senate . Mrs. Stanley, then chairman
of the Faculty Senate , asked Butske what the senate could
do to be of assistance , and Butske indicated that he would
like the senate to obtain the reasons in writing or arrange
for him to obtain them either in writing or orally. Mrs.
Stanley and Dr . John Goodenow , a member of the Faculty
Senate, later told Butske that they had conferred with Dean
Jackson but he would not give them the reasons for Butske's
termination. However , he stated that he would be willing to
give them to Butske in person. Approximately on November
1 9, Butske conferred with Dean Jackson but the latter did
not give him the reasons . On May 10, 1971, Butske wrote
to Dean Jackson requesting a written statement of the rea-
sons for his nonreappointment.
In the spring of l-970 , Professor Butske was informed by
a student , Kenneth Deering , that Professor Erneman "had
been asking students to submit written criticism" of
Butske's teaching. Butske then went to Jackson , who at that
time was assistant to Dean Ryan , and asked him, so he
testified , "what the hell goes on here ?" Jackson advised
Butske that "there was no cause for alarm" and informed
him that Professor Erneman was not doing his job and that
if he (Jackson) "had his way Professor Erneman would not
be on the staff beyond the academic year."
Early in the 1970-71 academic year , Professor Butske
joined the national and local chapter of the AAUP, and
thereafter attended most meetings and consistently urged
that the AAUP become the collective-bargainin agent for
to be collective bargaining . Dr. Angelescu , chairman of the
English language and literature department, attended the
meeting. A vote was taken on the question of whether the
chapter should attempt to become the collective -bargaining
agent of the faculty , and the resulting vote was 22 to 1 in
favor of the motion . Professor Lackey then asked for vol-
unteers for a steering committee to set up an open faculty
meeting in which the chapter 's position would be presented.
There were no volunteers andpProfessor Butske and Mrs.
Stanley accepted appointment to the committee . They con-
tacted faculty members to arrange for them to speak at the
open meeting and while this was in process Professor Butske
was notified for reappointment . The meeting was set for
November 5.
About 3 or 4 weeks after receiving his termination notifi-
cation , Professor Butske had a conversation with Dr. Odle
in the parking lot. Butske asked Dr. Odle if the latter was
aware that he would not be coming back to the Institute.
Odle replied that he had heard about the matter and further
stated that "the primary reason" for the notification "was
due to (Butske's) union activity." In addition , so Butske
testified , Dr. Odle said that "they were trying to get some-
one in the Math Department." He added , however, that
"they couldn 't get anything on him." Following this discus-
sion , Butske went to the Mathematics Department and
talked to the members of the AAUP Executive Committee.
He then waited around for Professor Brierly , as he "figured"
that Bnerly was a candidate for notification of nonreap-
pointment because he had circulated petitions on behalf of
the American Federation of Teachers in support of collec-
tive bargaining.
During the academic year of 1969-70 , Professor Butske
was a successful candidate for the Faculty Advisory Coun-
cil. His platform during the election campai gn was to im-
prove the quality of education at the Institute by improving
the conditions of faculty service; he also expressed concern
about the faculty workload . While a member of the Faculty
Senate (the successor to the Faculty Advisory Council) he
met with Dean Ryan , Assistant Dean Jackson , and Presi-
dent Buell, at which meeting the representatives of the ad-
ministration agreed that if a faculty member was not
teaching effectively he would receive less than the average
increase.
On April 14, 1971, Professor Butske , in his capacity as a
member of the Mechanical Engineering Curriculum Com-
mittee, sent a memorandum to Dr. Donald Dent , chairman
of the committee , regarding certain curriculum changes.
Approximately 3 weeks before the NLRB election which
was held on February 10,3 a faculty meeting, called jointly
by the AAUP, the Faculty Senate and the dean , was held
to discuss collective bargaining and was addressed by per-
sons representing the AAUP and the College Administra-
tion . A Dr. Choitz spoke on behalf of the administration,
questioning the propriety of collective bargaining for col-
lege faculty personnel and, in this connection , asked why
the faculty should "allow an intrusion of the foreign agent
on native soil," stating that the faculty handbook was suffi-
cient for the resolution of any problems on the campus.
On cross-examination, Professor Butske stated that he
had not had any graduate courses in thermodynamics, and
that he did not take classroom attendance in any formal
manner and did not always follow the provisions in the
faculty handbook meeting scheduled classes.
With respect to the information he had received regard-
the faculty. In October 1970, a closed meehn of the chap ter 3 The results were. 62 of 63 eligible voted; 22 ballots were cast for AAUP,
was called by the then president, Tom Lackey, and a flier 26 against ; 14 ballots were challenged , 10 by the AAUP and 4 by the Instl-
was sent out announcing that the subject for discussion was tute.
LAWRENCE INSTITUTE OF .TECHNOLOGY
ing Professor Erneman's activity in soliciting complaints
from students, in conference with Dean Jackson the latter,
so Professor Butske testified, "told me I could resign if I
wanted too. He said that I could say that we had an admin-
istrative disagreement." After talking with Assistant Dean
Jackson, Professor Butske had a brief conversation with
Dean Ryan who, according to Butske, stated that he should
"be patient ... you will be here a lot longer than Hans
Ememan."
Professor Ememan's evaluation of Butske, dated Decem-
ber 14, 1970, some 7 weeks after Butske had received his
letter of nonreappointment, is very derogatory and con-
cludes by stating "Unfortunately I recommend dismissal."
The evaluation form contains the following question:
"What has the individual done to increase or keep current
his professional qualifications?" In the space for an answer,
Professor Ememan placed a question mark. However, un-
der date of January 30, 1970, Professor Butske had given
Dr. Erneman a memorandum advising that he had become
a candidate for a Ph.D. in Engineering Mechanics at the
University of Michigan and that such candidacy "is formal
recognition that a student has met all Ph.D. requirements
(i.e., residency, major and coordinate courses, language,
preliminary and qualifying examinations) except comple-
tion and defense of the dissertation."
4. Aftermath
At the reopened hearing, Dr. Odle, who has been with
the Institute for 10 years and is chairman of the Department
of Social Sciences, testified that he did have a conversation
with Professor Butske in the fall of 1970 while in the parking
lot. Butske asked Dr. Odle if the latter had heard `that he
had not received a contract for the following year or had
received a dismissal" and Dr. Odle replied that he had heard
of that matter. He testified that he told Professor Butske
that the latter had left himself open for dismissal by reason
of discussing matters in the classroom "that were not perti-
nent to the subject being taught." Dr. Odle related that he
did not speak to Butske about the latter's union activity, and
that there was no mention of anyone in the math depart-
ment. Dr. Odle acknowledged that on March 11, 1971, he
told a Board agent investigating the case that Dean Jackson
had stated "that Tom Lackey had filed charges in this case
and that Dean Jackson reacted quite angrily and wanted
him to change the decision about putting him on tenure and
reduce his yearly increase."
Professor Butske, upon being recalled at the reopened
hearing, stated that Dr. Odle on the occasion when they met
in the parking lot told him that "the primary reason for my
notification of my nonreappointment was my union activi-
ty." Immediately after this conversation, Butske went to the
mathematics department and told Professor Nanny that he
had just spoken to Dr. Odle who had stated that he had been
terminated for union activity and that the administration
was "trying to get someone else in the math department . .
" He then waited for Professor Brierly to appear for his
evening class and informed him of what Dr. Odle had stat-
ed, because he felt Professor Brierly "was the other likely
candidate for notification of nonreappointment from the
math department." Professors Nanny, Brierly, and Otton
corroborated Professor Butske.
C. The Respondent's Case
At the time he testified, Dr. Angelescu was in his second
year with the Institute. He holds the position of chairman
37
of the Department of Language and Literature in the School
of Arts and Sciences , and is ranked as a professor . There are
10 full-time faculty members in that department and about
ten to seven who teach part -time . Dr. Angelescu has a Bach-
elor of Science degree , a Master of Arts degree, and a Ph.D.
degree , all from Wayne State University . He obtained his
Doctor's degree in 1968. In all , he has taught for 10 years.
Prior to coming to the Institute he taught in the Detroit
Public School System , in the evening class division. While
at the Institute , he has taught basic and advanced courses
in literature.
Dr. Angelescu has been a member of the AAUP for 12
or 13 years, but attends meetings rather infrequently. He has
not been active on any committee while at the Institute.
However, when teaching at Wayne State University, as a
teaching fellow, he was concerned about the status of teach-
ing fellows at a major university , and in consequence did
serve on a committee to deal with their problems.
Since becoming a member of the Institute 's faculty, there
are now fewer members in the English department, due to
a restructuring of the courses following a reduction in the
requirements for English credits as a condition of gradua-
tion. In response to the Institute 's request for written evalu-
ations of faculty members , Dr. Angelescu complied and
turned the evaluations over to Dr. Marbur ger, his imme-
diate superior . He wrote two evaluations of- Mrs . Stanley,
and in both recommended that her contract not be renewed.
Dr. Angelescu stated that basically his reason for so recom-
mending was that Mrs. Stanley was "undermining my posi-
tion as chairman and was a dissruptive influence in the
department" and "was not cooperating with department
policy in several ways .... " He further testified that in his
conversation with Mrs . Stanley, while notifying her of the
nonrenewal of her contract, he also mentioned the question
of maintaining attendance forms, although he conceded
that this was "a small matter." He also testified that he told
her that her "usefulness" for work in the department was
"rather limited," in that there were certain courses which he
felt he could not assign her to teach. Expanding upon this
point, Dr. Angelescu stated that in the fall quarter of 1969
she had had a "rather unfortunate experience" with regard
to a course in reading improvement and study skills . In this
course, so he testified , she gave D's or failing grades to
approximately 75 per cent of the students . Dr. Angelescu
stated that he received a number of complaints from stu-
dents and that a Mr. Moon , a student counselor, came to
see him . However, Dr. Angelescu told Mr. Moon that there
was nothing he could do as he did not feel that it was the
responsibility of the chairman of a department "to exert any
pressure on an instructor to change grades ." He added that
in a brief conversation between classes with Mrs. Stanley
she "mentioned the fact that she had heard " that Dr. Ange-
lescu had received complaints from students . He acknowl-
edged he had , but testified that he in substance told her not
worry about the matter.
Before Dr. Angelescu assumed his position with the Insti-
tute , Mrs. Stanley had taught the course in advanced com-
position . She told him that her policy was to meet the class
only once a week and to give assignments . Dr. Angelescu
stated, so he testified, that he did not regard this as a good
way to teach the course and, in consequence, did not assign
her to teach it for that year . However, during the last aca-
demic year he stated that he was "forced" to assign it to her
because he had no one else to assign. During the academic
year 1969-70, Dr . Angelescu was asked verbally for a rec-
ommendation concerning Mrs. Stanley 's reappointment for
the following academic year . According to him, he recom-
mended that she be reappointed . However, when asked dur-
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the academic year 1970-71 to make a recommendation
in writing, he testified that he made an adverse recommen-
dation.
Dr. Angelescu knew of Mrs . Stanley's activity in the
AAUP inasmuch as he attended some of the meetings. In
addition , he was familiar with her activities as chairman of
the Faculty Senate . However , he asserted that her activities
in the AAUP and as chairman of the Faculty Senate had
nothing whatever to do with his recommendation for her
nonreappointment . Indeed, he testified that he had never
discussed her union activities with Dr. Marburger or Dean
Jackson . Moreover, he stated that in the weekly meetings of
department chairman and heads of schools , Mrs. Stanley's
reappointment was not discussed and neither was the reap-
pointment of Professor Butske or Professor Brierly . Dr. An-
gelescu acknowledged that the reading improvement class
which Mrs. Stanley taught was basically a "deficiency-rem-
edial" course , and then estimated that she failed something
less than one-third of the students in the course.
Under date of December 5, 1970 , Dr. Angelescu made a
written evaluation of Mrs . Stanley in which he stated,
among other things , that under no circumstances did he
recommend "that we would ever consider granting her te-
nure" at the Institute, and, in addition, recommended that
her employment at the Institute "be terminated as soon as
this is feasible ." He added that his attitude toward Mrs.
Stanley was based "largely on my opinion that she is a
disruptive influence within the department ," and was un-
cooperative and "often flounced departmental and College
pohc in various , subtle ways." As an example, he cited the
fact that while it was coll ege olicy that attendance he taken
and recorded, she did not, during the academic year 1969-
70, turn in any attendance slips for any of her classes, de-
spite the fact that he had requested on a number of occa-
sions that all members of the Language and Literature
Department comply with these regulations . However, he
acknowledged that during the academic year beginning in
the fall of 1970 she had turned in attendance sheets . Accord-
ingg to Dr. Angelescu , Mrs. Stanley gave grades of D or
failures to a substantial percentage of the students in the
reading improvement and study skills class that she taught.
He concluded his memorandum by stating that in his view
Mrs. Stanley seemed "to be an unhappy person " and that
while many students avoided her classes when given a
choice, he had "heard numerous adverse comments from
students about her teaching." In consequence, he recom-
mended that her contract not be renewed.
On December 15, he wrote a lengthier evaluation of Mrs.
Stanley, and there stated that on December 8 he had sent
a notice to the teaching staff asking whether or not they
were maintaining a file of the themes written by students in
the basic courses . Without going into unnecessary detail
concerning Dr. Angelescu's evaluation report , he did state
that he objected "strenuously" about Mrs. Stanley 's alleged
efforts to "discredit my effectiveness as chairman ." In his
oppinion, Mrs. Stanley was counseling the teaching staff of
the department that they were under no obligation to permit
him to inspect the theme folders and , moreover, stated that
he "had been informed confidentially that Mrs . Stanley was
threatening to have me investigated by the Faculty Senate."
He concluded his memorandum by stating that Mrs. Stan-
ley "apparently wishes to become a mart
and is looking
for an `issue,' but I refuse to give her one .' In consequence,
he "strongly" recommended that Mrs . Stanley's contract
not be renewed for the academic year 1971-72.
Under date of October 29, Dr . Angelescu wrote to all
full-time faculty in his department , stating that after receiv-
ing a notice from the Faculty Senate concerning a meeting
the following week to discuss collective bargaining, it had
occurred to him that this was an item that ought to have
been on the agenda for the departmental meeting the re-
ceding Tuesday . In this somewhat lengthy memorandum,
Dr. Angelescu added that as chairman of the de,partmeat he
expected to function as "a kind of ambassador in order to
reflect the thinking of the members of the department on
various issues and problems . He suggested that it "might be
helpful if we can meet as a grou pp ' to discuss "if it would
be possible ... questions that might have profound implica-
tions for our future as college teachers at L.I .T." In conse-
quence , he scheduled a department meeting for Tuesday,
November 3.
Dr. Angelescu testified that he had not become interested
in or concerned about Mrs. Stanley's position as chairman
of the Faculty Senate . However, it may be noted that under
date of March 10 he made a statement to a Board agent that
a member of the English department faculty had told him
that Mrs. Stanley had threatened to have him investigated
by the Faculty Senate . This was one of the reasons, so Dr.
Angelescu testified, that he came to the conclusion that she
was undermining his position. He did admit that Mrs. Stan-
ley, during her last year, taught the course in advanced
composition 3 days a week , as he desired , and also that she
turned in attendance records and student absentee reports.
He added that he had never observed her teaching a class.
Though Dr. Angelescu further stated that Mrs. Stanley
thought that when teachers were absent or ill the depart-
ment should hire a substitute rather than ask other teachers
to fill in for the absent member , a position with which he
disagreed , this difference occurred early in Dr. Angelescu's
first year, he testified this constituted one of the reasons why
he regarded that she was uncooperative with him. He ac-
knowledged that he recommended an average wage in-
crease for Mrs. Stanley in 1970-71.
Dr. Hans Erneman , the Director of the Engineering
School , was the principal witness for the Respondent with
respect to the termination of Professor Butske . Dr. Erne-
man, who had received his principal educational training in
Germany , teaches about 6 to 8 hours a term . He has been
a professor at the Institute since 1941 , has been chairman
of-the Mechanical Engineering Department approximately
18 years , and head of the Engineering School for the past
6 or 7 years . There are six full-time faculty and eight part-
time teachers in the department.
According to Dr . Erneman , there are two methods of
evaluating an instructor's performance . One is by means of
student reports of the instructor 's behavior and perfor-
mance ; the other consists of checking the teacher 's exam-
ination in order to judge whether the requirements of the
course have been fulfilled and the level of study. Dr. Erne-
man testified that students came to him and complained
about the procedure being followed by Professor Butske,
asserting that he gave an incomplete presentation of the
subject matter and that they did not receive sufficient infor-
mation and instructions to be able to "work those examina-
tions ." Moreover, so Dr. Erneman testified , students told
him that class time was consumed in the discussion of mat-
ters not related to the course , such as political discussions
regarding the school, its administration , and instructors.
In March or April 1970 , Dr. Enreman began inserting
so-called student `complaints" in Professor Butske's per-
sonnel folder . Prior thereto , he had not followed his practice
with respect to Professor Butske and, indeed , had not done
so with respect to any other member of his department. He
stated that he began this practice because the complaints
"were getting plentiful." Dr. Erneman also testified that in
March or April 1970, after Professor Butske had received
LAWRENCE INSTITUTE OF TECHNOLOGY
notice that his contract would be renewed for the following
academic year , he discussed with then Assistant Dean Jack-
son whether or not Butske should be terminated. Dr. Erne-
man recommended , so he testified , that Professor Butske be
continued on the faculty , but that during the first term of
the 1971-72 academic year he be given notice of nonreap-
pointment . In October 1970, Dr . Erneman discussed with
Dean Ryan whether or not Professor Butske 's contract
should be renewed and in consequence Butske was noti-
fied 4 that his contract would not be renewed . According to
Dr. Erneman , he told Dean Jackson that he was in need of
a teacher in thermodynamics and thermofluids and that in
his opinion Professor Butske was incompetent in these mat-
ters . Dean Jackson suggested that Dr . Erneman discuss the
situation regarding Professor Butske with other members of
the department . Dr. Erneman testified that he spoke to
other faculty members individually and told them in effect,
that Professor Butske was not able to handle the subject
matter and that he had been notified that his contract would
not be renewed . Dr. Erneman did not confer with Professor
Butske nor did he discuss Butske 's performance with Dr.
Odle. Dr . Erneman testified that he had no knowledge re-
garding any union activity on the part of Professor Butske
and that this matter was not discussed with Dean Jackson
or anyone else.
Professor Nace , chairman of the mathematics depart-
ment , testified that during Professor Brierly's first term
(1967-68) "quite a number of students " came to him com-
plaining that Professor Brierly was not "getting through" to
them . Professor Nace testified that he asked that the stu-
dents confer with Professor Brierly and added that some of
them later told him that they had obtained no satisfaction
after conferring with Professor Brierly . Thereupon Profes-
sor Nace discussed the matter with Professor Brierly. Dur-
ing the following academic year some students again came
to Professor Nace with further complaints . Professor Nace
further testified that during registration students informed
him that they did not desire to register for Professor
Brierly's courses . In an evaluation conference with Dean
Ryan , Professor Nace stated that he was uncertain whether
Professor Brierly was doing the type of job necessary at the
Institute . It was then determined that Professor Nace would
have a further talk with the Professor Brierly. Thereafter
Professor Nace , so he testified , became satisfied that Profes-
sor Brierly would make an effort to improve and accordingly
he was offered a contract for the following year.
In December 1970, Professor Nace made a written evalu-
ation of the faculty in his department and turned them in
to Dr . Marburger , the director of the School of Arts and
Sciences . With respect to Professor Brierly he stated that he
was a good mathematician and liked to teach , but that he
did not "always follow course outlines provided by the de-
partment , and his presentations are somewhat different
from the rest of the staff in that he continually tries an
on inal approach ." He added that the reaction of students
to his type of presentation varied , and that it appeared that
any of the relatively good students like his methods while
some of the weaker students ob ect." He concluded that
Brierly "is certainly a qualified) instructor " and recom-
mended the standard raise and to "delay the decision con-
cerning rank and tenure until next year." Dean Jackson,
under date of December 15, wrote on Professor Nace's
memorandum that the Institute could not "delay all deci-
sions on rank & tenure until next year." He noted that
Professor Brierly , during the previous year, had been
"warned about his approaches ," and requested that Profes-
The letter is dated October 30, a Friday
39
sor Nace and Dr. Marburger review the matter once more.
In January President Buell, Dr . Marburger, Dean Jackson,
and Professor Nace met to evaluate the faculty in the math-
ematics department in connection with determining salary
levels. In this meeting Professor Nace, so he testified , stated
that he had received two complaints that Brierly was "not
getting through" to the students and said that he did not
believe Brierly should be awarded tenure . In consequence,
on January 29 Professor Nace gave Professor Brierly a letter
notifying him that because of the number of student com-
plaints and dissatisfaction with his teaching methods, his
contract would not be renewed . In response , Brierly stated
that he was "being fired for union activity" and said that he
would "see me in court."
On cross-examination , Professor Nace testified that in
November 1970 he had a staff meeting and inquired of the
faculty whether any of them had any comments concerning
the AAUP and the upcoming Board election . He further
stated that in this meeting he commented that "once the
AAUP gets in this is just a step to force the AFT down our
necks."
D. Concluding Findings5
In his able brief , counsel for the Respondent correctly
points out that the issues to be decided are primarily factual
rather than legal. The basic question , of course , is whether
the three professors here involved were refused contract
renewal in order to encourage or discourage membership in
a labor organization . I agree with counsel that in deciding
this issue careful consideration must be given to the princi-
ple of academic tenure . In a March 8, 1971, memorandum
to department chairmen and directors of schools , devoted
to the subject of academic tenure , Dean Jackson stated that
the original rationale of academic tenure was that it served
to safeguard academic freedom but that this rationale, in his
view, "has temporarily receded ... somewhat into the back-
ground," and that at the present time "the principal signifi-
cance of academic tenure would seem to have shifted to job
security." He then continued:
This shift in the significance or thrust of academic
tenure merely emphasizes , I submit, the importance of
the traditional safeguards against the abuse of the prin-
ciple of tenure . It becomes even more important to
insure only the "fittest of the fit" achieve this status. As
an official AAUP document on tenure puts it: "There
is no doubt that strict tenure rules make it imperative
for an institution to be more careful in selecting its
faculty and more courageous in sending away those
who TO not meet its standard."
In a subsequent memorandum to the faculty , dated May
14, Dean Jackson noted the recent "up surge of questioning
of tenure" and referred to the reasons for this. He stated:
They stem in part from all the old arguments about
protecting, if not promoting , mediocrity , and in part
from new considerations of economics in the financial
bind in which even public higher education now finds
itself . But most of all , it seems to me , they stem from
the recent attempt to expand the concept of tenure far
beyond what it has traditionally been, and convert it
into `instant tenure .' In rather obvious reaction to the
conditions of the market place , a movement has been
launched , which if successful , would have the effect of
giving a teacher tenure from the moment he was first
hired....
In my own thinking about the system of tenure, I have
The order consolidating the cases did not direct that I make findings
concerning the objections to the election , and I make none.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been struck by its correspondence to the medieval feu-
dal system . There is the same contractual relationship
of reciprocal obligations , edged about with customary
rights and privileges , as existed between suzerain and
vassal . There is the same tenuousness of authority and
control , depending often upon personality for effec-
tiveness . There are the same types of impediments,
from powerful groups with vested interests at stake, to
prompt and decisive action , no matter how much the
common weal might be at stake . There is often the
same parochial ... approach to problems of wide and
general concern . All of these analogies (and many
more) leave one to ponder the fate of the feudal sys-
tem-engulfed by a tide of dissatisfaction from increas-
ingly important elements outside of it and finally
overthrown by a coalition of those elements and one of
the parties of the feudal system itself.
I have no reason to doubt that Dean Jackson 's comments
correctly portray the situation with res pect to tenure. As-
suming its accuracy , my task is made all the more difficult
by reason of the fact that I have scarcely any basis to com-
pare the relative ability of the faculty members here in-
volved who held positions in each of three departments,
with other faculty in their departments . In short , I have no
basis for making an informed judgment whether Professors
Stanley, Butske , and Brierly , in the normal course of events,
and in the absence of the recent policy of the AAUP to
engage in collective bargaining and the active involvement
of the three individuals therein , would have been reappoint-
ed. From the available evidence before me, I must ascertain,
as best I can , whether their concerted activity was in whole
or in part a factor in the decision of the Institute not to
renew their contracts . We turn then to a consideration of the
factors surrounding their separation.
Mrs. Stanley was, as the Respondent well knew, very
active in the AAUP and served as Chairman of the Faculty
Senate . At the November 5 faculty meeting , held to consider
the various views regarding affiliation with the AAUP and
collective bargaining , Mrs. Stanley , as one of the scheduled
speakers , gave an account of the history of faculty govern-
ment at the Institute and observed that in her view it had
been very ineffective in reaching decisions affecting school
policy . She advocated that the only solution was for the
faculty to obtain union representation. Upon analysis, the
Respondent's case against Mrs. Stanley im presses me as
extremely thin . As to student complaints , Dean Jackson
regarded them as of little significance. I find little substance
in Dr . Angelescu's claim that she was "threatening" his
position as chairman of the department . I note that Dr.
Anpelescu recommended that Mrs . Stanley be reappointed
during the academic year 1969-70. However, he made an -
adverse recommendation during the 1970-71 academic
year . There is nothing in the record to explain this shift of
opinion , based upon Mrs. Stanley 's work performance. The
Respondent produced no witnesses to corroborate Dr.
Angelescu 's assertion that Mrs . Stanley had been counsel-
ing the teaching staff of the department that they were not
obliged to permit him to inspect student theme folders and
that she had threatened to have him investigated by the
Faculty Senate . I am persuaded that Dr . Angelescu was
influenced in not renewing Mrs. Stanley 's contract by her
activity in promoting collective bargaining by the AAUP,
and I so find . Accordingly , I find that by not renewing her
contract for the academic year 1971-72, the Institute dis-
criminated against Mrs. Stanley in violation of Section
8(a)(3) and (1) of the Act .6
6 Under date of May 18, 1971, Dr. Thomas Odle gave Mrs Stanley a letter
With respect to Professor Brierly, it is clear that he, too,
was active in the AAUP and advocated that it engage in
collective bargaining. He told Dr. Marburger that he was
a staunch believer" in unionism and that in his view the
faculty of the Institute needed a labor organization to repre-
sent them because the administration was "guilty of many
many unethical practices" with respect to the faculty. As we
have seen, the evidence is conflicting regarding the conver-
sation concerning Brierly that was had between Professor
Butske and Dr. Odle on January 29. After giving their ver-
sions careful consideration, I credit Professor Butske. Dr.
Odle appeared to me to be nervous and visibly ill at ease
while testifying, and, moreover, contradicted himself in sev-
eral respects. Additionally, Professor Butske was corrobo-
rated by Professors Nace, Brierly, and Otton.
Concerning Professor Brierly, the record is clear that he
was prominently active in promoting collective bargaining
by the AAUP and was so recognized by the Respondent.
His department head considered him a good mathematician
and a competent teacher. While I recognize that Dean Jack-
son insisted that at least one additional person be separated
in the mathematics department, thereby necessitating a
choice, I have no basis for evaluating the relative capability
of the various instructors in the department 7 Counsel for
the Respondent in his brief argues that one incident indi-
cates Professor Brierly's lack of good judgment. While Pro-
fessor Brierl testified that the students considered his
teaching performance to be good, he based this on an evalu-
ation form which he gave students at the time of the final
examination which the students were to sign. Therefore, the
Respondent's counsel remarks: "How could a teacher possi-
bly assume that an objective evaluation could be obtained
through such a procedure." Moreover, he points out that
there were other members of the department who were "ful-
ly as active," referring to Professor Lackey, then president
of the LIT Chapter, in particular, who were reappointed. On
balance, however, I conclude and find that Brierly's con-
certed activities influenced the Institute to decline to renew
his contract, thereby violating Section 8(a)(3) and (1) of the
Act.
The record quite plainly supports the view that Dr. Erne-
man was determined to build a record that would justify
terminating Butske. Thus he asked students to make written
complaints regarding Professor Butske's methods of in-
struction and, in addition, placed in Butske's personnel file
numerous notations concerning Butske's attendance and
the like. Dr. Erneman's explanation for so doing was that
the complaints "were getting plentiful." It should be noted,
however, that there is no record of complaints in the several
years Professor Butske had taught at the Institute prior to
the spring of 1970, nor does the record disclose in what
manner his conduct had changed from the period prior to
1970. Butske's testimony is not contradicted that in the
1969-70 academic year, when the student government made
evaluations of the teachers, he received a copy of the evalua-
tion given him during the second quarter of that year and
he was given an average grade of B. He played a leading role
in the movement to establish the AAUP as the collective
bargaining representative of the faculty, serving on the
steering committee to arrange an open faculty meeting in
which g e Chapter's position on collective bargaining would
be presented; he also contacted faculty members to speak
at that meeting. It was while this activity was in process that
he was notified of his nonreappointment. Moreover, it will
of recommendation, in which he stated that she was regarded by students "as
an outstanding teacher" and that "her demonstrated classroom effectiveness
speaks for itself "
7 1 note that Professor Brierly had 59 credit hours toward his Ph.D. degree.
LAWRENCE INSTITUTE OF TECHNOLOGY 41
be recalled that , as found previously, Dr. Odle told him that
"the primary reason" he had received notification of non-
reappointment was due to his union activity . Professor
Butske credibly testified that when he conferred with Dean
Jackson concerning Dr. Erneman 's activity in soliciting
complaints from students , Dean Jackson told him that he
could resign if he wished to and attribute such action to an
administrative disagreement with the school . Thereafter, so
Butske credibly testified , he had a conversation with Dean
Ryan who stated that he should be patient and that he
would be at the Institute "a lot longer than Hans Erneman."
The biased character of Dr . Erneman's written evaluation
of Butske , dated December 14, some 7 weeks after Butske
had been notified that he would not be reappointed, is
evident on its face . In reply to the question "What has the
individual done to increase or keep current his professional
qualifications?," Dr. Erneman placed a question mark.
However , in January Professor Butske had furnished Dr.
Erneman with a memorandum advising that he had become
a candidate for a doctorate degree in engineering mechanics
and had met ail requirements therefore except completion
and defense of his dissertation . Upon all the facts, I con-
clude and find that in not renewing Professor Butske's con-
tract the Institute discriminated against him in violation of
Section 8(a)(3) and ( 1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Lawrence Institute of Technology,
is an employer within the meaning of Section 2 (6) and (7)
of the Act.
2. American Association of University Professors, LIT
Chapter , is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By terminating the employment of Professors Kathleen
Stanley, Joseph Bnerly , and Bruce Butske , the Respondent
unlawfully discriminated against them and thereby violated
Section 8(a)(3) and ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(3) and (1) of the
Act, it will be recommended that it cease and desist there-
from and take the necessary affirmative action to effectuate
the policies of the Act . Since I have found that the Respon-
dent unlawfully terminated the employment of the three
employees named in the complaint r shall recommend that
the Respondent offer them immediate and full reinstate-
ment with backpay computed on a quarterly basis, plus
interest at 6 percent per annum, as prescribed in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716, and to post appropriate no-
tices.
[Recommended Order omitted from publication]