Milton College

National Labor Relations Board - Board Decisions

Feb 22, 1982

260 N.L.R.B. 399 (N.L.R.B. 1982)

MILTON COI LEGE
Milton College and Milton College Faculty Associ-
ation, Local 4094, WFT, AFL-CIO. Case 30-
CA-5860
February 22, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DFt WA TER ANt)
MEMBERS FANNING AND ZIMMI RMAN
Upon a charge filed on May 29, 1980, by Milton
College Faculty Association, Local 4094, WFT,
AFL-CIO, herein called the Union, and duly
served on Milton College, herein called Respond-
ent, the General Counsel of the National Labor
Relations Board, by the Regional Director for
Region 30, issued a complaint on February 6, 1981,
against Respondent, alleging that Respondent had
engaged in and was engaging 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 National Labor Relations Act, as amended.
Copies of the charge and complaint and notice of
hearing before an administrative law judge were
duly served on the parties to this proceeding.
With respect to the unfair labor practices, the
complaint alleges in substance that on September
20, 1979, following a Board election in Case 30-
RC-3557,' the Union was duly certified as the ex-
clusive collective-bargaining representative of Re-
spondent's employees in the unit found appropriate;
and that, commencing on or about May 5, 1980,
and at all times thereafter, Respondent has refused,
and continues to date to refuse, to bargain collec-
tively with the Union as the exclusive bargaining
representative, although the Union has requested
and is requesting it to do so. On February 12, 1981,
Respondent filed its answer to the complaint admit-
ting in part, and denying in part, the allegations in
the complaint.
On October 21, 1981, counsel for the General
Counsel filed directly with the Board a Motion for
Summary Judgment. Subsequently, on October 23,
1981, the Board issued an order transferring the
proceeding to the Board and a Notice To Show
Cause why the General Counsel's Motion for Sum-
mary Judgment should not be granted. Respondent
thereafter filed a response to the Notice To Show
Cause, denominated as its "Argument in Opposi-
tion to Motion for Summary Judgment," incorpo-
' Official notice is taken of the record in the representation proe'ed-
ing. Case 30-RC-3557, as the term "record" is defined in Seces 1028
and 102.69(g) of the Board's Rules and Regulations. Series 8. as amended
See LTTV Elecrrosystems. Inc., 166 NLRB 938 (1967), enfd 388 F2d 683
(4th Cir 1968); Golden Age Beverage Co., 167 NL RB 151 (1967), enfd 415
F.2d 26 (5th Cir 1969); Intertype Co. . Penello. 269 F Supp 573
(D.C.Va. 1967); Follerl Corp., 164 NLRH 378 (1967), enfd 197 F 2d 9I
(7th Cir 1968); Sec 9(d) of the NLRA, as amended
260 NLRB No. 47
rating an affidavit by Respondent's dean. On No-
vember 18, 1981, counsel for the General Counsel
filed a motion to strike Respondent's affidavit, and
also filed a "Response to Respondent's Opposition
to Motion for Summary Judgment."
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.
Upon the entire record in this proceeding, the
Board makes the following:
Ruling on the Motion for Summary Judgment
In its answer to the complaint and opposition to
the General Counsel's Motion for Summary Judg-
ment, Respondent asserts that the unit herein is in-
appropriate and that the General Counsel is not en-
titled to summary judgment in this matter because
there is a genuine issue of fact and of law to be de-
termined. Thus, while Respondent admits certain
factual allegations of the complaint, including the
May 5, 1980, denial of the Union's requested com-
mencement of bargaining, it contends in effect that
the decision by the Supreme Court in A'L.R.B. v.
Yeshiva University, 444 U.S. 672 (1980), holding cer-
tain faculty members to be managerial in status,
renders the previously stipulated unit herein inap-
propriate. In support of its position regarding the
managerial status of its faculty members which
would bring them under the rubric of Yeshiva,
supra, Respondent asserts in a sworn affidavit that
the faculty members included in the unit have com-
plete authority to determine curriculum, to set ad-
mission policies and matriculation standards, to
control retention policies, grading policies, and
actual grading, and to determine which students
graduate and which do not. Further, Respondent
asserts that the faculty has complete control over,
inter alia, faculty hiring, determination of tenure
policies, faculty sabbaticals, termination and pro-
motion of faculty, and the selection and evaluation
of chairpersons and department heads. Additional-
ly, Respondent asserts that the faculty has "great
authority and influence over": faculty salaries, de-
partmental budgets, faculty evaluations, faculty
grievances, and leaves of absence. Respondent fur-
ther contends that the authority and managerial
status of the faculty is presented "as of the present
date as well as the date that the initial bargaining
unit was determined."
Counsel for the General Counsel argues that Re-
spondent's reliance on Yeshiva is untimely, that Re-
spondent must be deemed to have waived such ar-
gument, that there are no special circumstances
which would require any reexamination of the rep-
resentation case, and that Respondent should thus
399
DECISIONS O()F NATIONAl LABOR RELATIONS BOARD
not now be permitted to present any such evi-
dence.
We find no merit in the General Counsel's argu-
ments. We conclude that the Supreme Court's deci-
sion in Yeshiva constitutes a substantial change in
the state of the law regarding the supervisory
and/or managerial status of faculty members which
warrants the holding of a hearing on the appropri-
ateness of the unit. 2 There is no allegation here
that Respondent has made changes in the duties or
the authority of faculty members. The General
Counsel apparently concedes that the issue here is
not the relitigation of an issue previously decided,
but rather in effect presents an issue not previously
litigated. While the General Counsel asserts that
Respondent has effectively waived litigation of the
appropriateness of the unit, we agree with Re-
spondent that waiver implies knowledge of a right
before it can be waived. In this connection, we do
not agree with the General Counsel that Respond-
ent can be held to have knowledgeably waived a
court decision which issued some 9 months follow-
ing the initial stipulation herein. Counsel for the
General Counsel also asserts that the affidavit of
Respondent's dean should be stricken because
Dean Collins had been employed only a few
2 The parties stipulated to the faculty unit in May 1979 'Ihe election
was conducted pursuant to a Stipulation for Certification Upon Consent
Election, and certification issued September 1979. The Court's decision in
Yeshiva, in February 1980. postdated the certification but apparently pre-
ceded the Union's request for bargaining.
months when the certification issued, and Collins
could not have had sufficient time to determine the
faculty's actual duties and authority in that short
amount of time, and is "not qualified to proffer evi-
dence regarding the duties and authority of faculty
prior to" June 1979. The General Counsel further
asserts that if the Board does not strike Collins' af-
fidavit little, if any, weight should be given to it.
We reject these arguments. To the extent that the
General Counsel's position is intended to challenge
the factual assertions in Respondent's affidavit, it
would appear that it also puts in issue both factual
and legal questions requiring further resolution.
Accordingly, we shall deny the General Coun-
sel's Motion for Summary Judgment, and remand
the instant proceeding to the Regional Director to
arrange for a hearing concerning the appropriate
unit.
ORDER
It is hereby ordered that the General Counsel's
Motion for Summary Judgment herein, and his
motion to strike Respondent's affidavit incorporat-
ed in its "Argument in Opposition To Motion for
Summary Judgment" shall be, and they hereby are,
denied.
IT IS FURTHER ORDER lI) that Case 30-CA-5860
be remanded to the Regional Director for further
appropriate action.
400