Monmouth College

National Labor Relations Board - Board Decisions

Jun 27, 1973

204 N.L.R.B. 554 (N.L.R.B. 1973)

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Monmouth College and Arthur S. Weinberg. Case 22-
CA-4461
June 27, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On January 13, 1972, Administrative Law Judge I
Henry S. Salim issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief. General Counsel filed a reply
brief, and Charging Party filed a brief in opposition
to exceptions filed by Respondent. Upon consider-
ation of the exceptions, briefs, and record, the Board,
on June 16, 1972, issued an Order reopening the rec-
ord and remanding the proceeding to the Regional
Director for further hearing, directing the Adminis-
trative Law Judge to receive certain relevant evidence
that the parties had offered at the hearing and to make
findings of fact based upon the evidence.
On December 15, 1972, the Administrative Law
Judge issued the attached Supplemental Decision in
this proceeding. Respondent filed exceptions to the
Supplemental Decision, General Counsel filed an an-
swering brief, and Charging Party filed a brief in sup-
port of the Supplemental Decision.
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 entire record and the
attached Decision and Supplemental Decision in light
of the exceptions and briefs, and finds merit in certain
of Respondent's exceptions.' It has decided, for rea-
sons set forth below, to dismiss the complaint in its
entirety. It therefore adopts only those findings of the
Administrative Law Judge that are consistent with
this Decision and does not adopt his conclusions or
recommended Order.
The proceeding is concerned solely with
Respondent's renewal of Instructor Arthur S.
Weinberg's employment contract in November 1970,
alleged as violative of Section 8(a)(1) and (3) of the
Act. The Administrative Law Judge found that Re-
spondent unlawfully terminated the contract because
of Weinberg's union and anti-college administration
activity. Weinberg's activity was on behalf of Faculty
t The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
2 Respondent has requested oral arguments . This request is hereby denied
as the record , exceptions , and briefs adequately present the issues and the
positions of the parties
Association of Monmouth College (FAMCO), which
was seeking to organize the college faculty, and also
in aid of two faculty members (John Illo and Michael
Greenberg) whom the College was proposing to dis-
miss for disrupting a college convocation in early
1970. The Administrative Law Judge based his find-
ing of violation on statements of Weinberg's depart-
ment chairman , Dr. Robert J. Tompa, in June and
September 1970, from which he inferred hostility to-
ward Weinberg's union and antiadministration activi-
ty. The only other fact bearing on Respondent's
alleged unlawful motivation is that which can be in-
ferred from the sequence of events, i.e., that
Weinberg's activity, begun in the fall of 1969, preced-
ed his notice of contract nonrenewal more than a year
later.
We cannot hold, on inference alone, that the nonre-
newal of the contract was based upon a discriminato-
ry motivation. We are unwilling to presume that
Respondent harbored union animus based upon an
expression of opinion by the Chairman of the Depart-
ment of Business Administration that he had been
initially interested in the Union, but now felt it would
have been "bad" for the College. Such an expression
of opinion, which was unaccompanied by any coer-
cive statements, promises, or threats of any kind, falls
far short of demonstrating that the College was so
hostile to the Union's organization of its faculty that
it would refuse to renew an instructor's contract.;
Furthermore, we attach no significance, as the Ad-
ministrative Law Judge did, to the innocuous reply
made by Department Chairman Tompa to Weinberg
several months later at a picnic when Weinberg stat-
ed, "Possibly Dean Holt is not interested in me as an
instructor." Tompa replied, "That is possible." Unlike
the Administrative Law Judge, we fail to see how
Tompa's response could be considered a "foreboding
prediction" and an "intimation that Weinberg's extra-
curricular activities had rendered his continued ten-
ure at the college dubious." The link between the
Dean's decision not to introduce a new course on the
literature of dissent and Weinberg's "extracurricular
activities" is missing.
In a similar manner we hold that union hostility has
3 An "abrupt change" in the Department Chairman's attitude toward
Weinberg is said by the Administrative Law Judge to have followed the June
1970 luncheon when this statement was made By inference , the change is
attributed to Weinberg's statement in favor of the Union to Department
Chairman Tompa . However, such an inference overlooks the fact that
Weinberg's prounion sentiment came as no surprise or revelation because
Weinberg had been openly active for the Union since September 1969. More-
over, during the time of his union organizing activities, Weinberg's contract
was renewed in February 1970 and a salary increase given to him
Further, the two men's discussion at the June luncheon as to "possible
repercussions" of Weinberg's activity was not related to Weinberg's prounion
and Illo-Greenberg activity, as the Administrative Law Judge inferred Rath-
er, as Weinberg's prehearing affidavit showed, the discussion referred to a
student strike in May 1970 over unrelated matters
204 NLRB No. 97
MONMOUTH COLLEGE
not been shown by the General Counsel's introduc-
tion into evidence of Respondent's preelection cam-
paign literature. After Respondent and FAMCO
entered into a Stipulation for Certification Upon
Consent Election on December 22, 1970, based on the
petition Respondent had filed in Case 22-RM-334,
Respondent disseminated certain campaign litera-
ture. The literature showed the College's preference
not to have its faculty select a union to represent
them, but it also showed a concern that its employees
feel free to exercise their Section 7 rights. In its letter
to the faculty dated January 11, 1971, the College
expressly stated its recognition of the faculty's right to
select a collective-bargaining representative. The let-
ter to the faculty stated, in pertinent part:
Of course, if a majority of the full-time faculty
who vote want a union here that is their right.
This administration respects that right, and will
abide with their wishes if a union is selected. We
ask only that you be fully informed before cast-
ing your ballot, particularly since this will be the
first election conducted by the National Labor
Relations Board among college faculty, and the
eyes of many others are upon us.
Following certification of the Union, the parties
negotiated and entered into a collective-bargaining
agreement.
While Weinberg along with others did participate
in the protest concerning the dismissal of two profes-
sors for disrupting a college meeting, there were other
faculty members who played a more prominent and
leading role in the protest. Two nontenured faculty
members, like Weinberg, who signed the letter to the
alumni publication concerning the incident are still
employed by Respondent. No allegation has been
made that any other faculty member, except Wein-
berg, has been discriminated against because of the
protest action.
We conclude that the record does not establish that
Respondent was motivated to discriminate against
Weinberg because of either his union activities or his
part in the protest over dismissal of the two faculty
members. The burden of establishing such motivation
has not been met by the General Counsel. We shall
therefore dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE AND ISSUE
555
HENRY S. SAHM , Trial Examiner: This case, heard at New-
ark, New Jersey, on September 13 and 14, 1971,1 pursuant
to a charge filed the preceding May 18, and a complaint
issued July 1,2 presents the question whether Respondent,
Monmouth College, discharged Arthur S. Weinberg, a
member of its faculty, on November 18, 1970, because of his
interest in FAMCO (acronym for "Faculty Association of
Monmouth College") and his protest against the college
administration's efforts to discipline two of his faculty col-
leagues who had allegedly created a disturbance at a college
convocation addressed by General Maxwell Taylor. Upon
the entire record, including my observation of the demeanor
of the witnesses, and after due consideration of the briefs
filed by all the parties on November 8, there are made the
following:
FINDINGS OF FACT
I THE COLLEGE
Monmouth College, a New Jersey corporation, is a pri-
vate, nonprofit educational institution with an enrollment
of approximately 5,400 students and a full-time faculty of
about 200 instructors. Its annual gross revenues, derived
from tuition and fees, exceed $1 million, of which more than
$50,000 is received from outside the State of New Jersey. It
would appear that Monmouth College meets the jurisdic-
tional standard for colleges and universities as set forth in
Section 103.1 of the Board's Rules and Regulations. Ac-
cordingly, it is found that the College Employer is engaged
in commerce within the meaning of the Act, and it will
effectuate the policies of the Act to assert jurisdiction here-
in. Fordham University, 193 NLRB 134.
II THE LABOR ORGANIZATION
Faculty Association of Monmouth College, herein re-
ferred to as FAMCO, was organized in June 1969 and is a
labor organization within the meaning of Section 2(5) of the
Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Arthur Weinberg, formerly an instructor in economics in
the department of business administration at Monmouth
College, assumed his duties on September 9, 1969, for the
academic year 1969-70. Dr. Robert J. Tompa, professor of
economics and chairman of the department of business ad-
ministration at Monmouth College since 1960, assigned to
Weinberg, in the fall of 1969, in addition to his teaching
duties, the administrative function of scheduling the curric-
1 This case was continued from September 14 until October 5, 1971. On
October I, the parties jointly agreed by written stipulation that the record be
closed and the proceedings concluded On October 4, an order issued closing
the hearing
2 All dates herein, unless otherwise indicated, refer to the year 1971
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ulum for that department . Weinberg's contract was renewed
in February 1970 for the academic year 1970-71, and his
salary was increased from $8 ,500 to $9 ,200. In the spring of
1970, Dr. Tompa delegated to Weinberg the additional re-
sponsibility of aiding him in processing written applications
and interviewing those applying for teaching positions with
the college's business administration department . On many
occasions, Weinberg not only made the initial contact with
the applicants but also carried on correspondence with
them . Tompa testified , on examination by Charging Party's
counsel , that he had never questioned Weinberg 's compe-
tency nor the quality of his work performance, and stated
that Weinberg was "a very articulate, bright young man,
had good rapport with his students ... " Weinberg also
received commendations from the college in December
1969 and January 1970.
Tompa notified Weinberg on November 18, 1970, 14
months after Weinberg was hired, that he had decided not
to renew Weinberg 's teaching contract for the academic
year 1971-72. His reason, Tompa told Weinberg, was be-
cause he [Weinberg] was not making fast enough progress
in obtaining his doctor of philosophy degree in economics.
In a letter dated March 15, 1971, addressed to the appellate
committee of Monmouth College, Tompa wrote: "At a time
when we are recruiting people who hold the doctorate, we
find that Mr. Weinberg has shown little progress in complet-
ing his professional training ." 3 In addition , testified Tom-
pa, there existed "subjective factors . . . lack of
communications , perhaps a gap in terms of our relation-
ships . . . Maybe a personality difference, lack of under-
standing of one another , the lack of rapport in a sense."
However, Tompa minimized these "subjective factors"
when he testified that if Weinberg had been making sub-
stantial progress toward his doctor of philosophy degree, it
"would have balanced his judgment in favor of retaining
him . . . if he had achieved , in my estimation , a satisfactory
progress [which] was quite close to the Ph.D., I would have
retained him."
Tompa testified at one point in his direct examination
that "personal considerations " were involved in his estima-
tion of Weinberg , such as the incident of the sheriff 's repos-
sessing Weinberg's automobile . Tompa testified: "My
statement was that, as objective as I've tried to be in terms
of the needs of the department , certain subjective elements
are formulated in my mind , considering Mr. Weinberg as a
person ." Although Tompa testified that the auto reposses-
sion incident was not a "personal consideration " for not
retaining Weinberg as an instructor , he admitted in his affi-
davit given to a National Labor Relations Board investiga-
tor, that the repossession incident was a factor in his
decision to terminate Weinberg . Tompa declared that his
present testimony should reflect that this incident was not
a reason for his deciding to recommend Weinberg's dis-
charge.
Tompa concluded his testimony , with respect to his deci-
sion to terminate Weinberg , by stating that not only had
Weinberg made insufficient progress to obtain his doctor-
ate, but he also believed there was an opportunity presented
3GC Exh.4
to him to "upgrade the department" as many of the appli-
cants for faculty positions in the academic year 1971-72
already held doctorates. In explanation, Tompa testified
that there was an abundance of applicants during 1970 who
held doctor of philosophy degrees in economics. Tompa
continued that, in order to improve the academic quality of
his department , he desired to increase the percentage of
doctorates inasmuch as accredited membership in the
American Collegiate Schools of Business required 40 per-
cent of the teaching staff to be holders of doctorates, where-
as the percentage of the Monmouth College business
department for the academic year 1970, who were recipients
of doctoral degrees, was only about 20 percent. Tompa
concluded that since, in 1970, there was no lack of qualified
applicants to the faculty who held doctorates, he decided to
recommend to Dean Holt , his immediate superior, in the
"middle of November" Weinberg's dismissal, in view of his
having shown "little progress in completing his professional
training." (See G.C. Exh. 4.)
On May 28, 1970, when Weinberg was elected a member
of the executive committee of FAMCO, it had not yet distri-
buted to the faculty any literature soliciting them to join
FAMCO. It had, however, in May, distributed to all faculty
members a slate of candidates for office whom FAMCO
endorsed in the May 28 election, and this list included
Weinberg' s name . On June 5, 1970, Weinberg attended a
joint meeting of the faculty members of the English and
history departments to discuss plans to defend Professors
Illo and Greenberg, faculty members of Monmouth College
against whom the college administration had instituted pro-
ceedings , leading to their possible termination for having
allegedly created a disturbance at a recent college convoca-
tion which had been addressed by General Maxwell Taylor.
Present at this faculty meeting was Professor Styslinger, a
member of the English department , who was also assistant
to the president of Monmouth College. Weinberg proposed
a motion at this meeting that the faculty take "strong united
action" by voting no-confidence in the administration of
William Van Note, Monmouth College's president.
On June 8, 1970, Weinberg, who is an alumnus of Mon-
mouth , attended a meeting of the alumni association. On
the agenda was a panel discussion of the Vietnam "war," the
Cambodian "incident," and the termination charges against
Professors Illo and Greenberg. Weinberg accused President
Van Note, who was present at this meeting, of not following
the standard procedures prescribed by the faculty bylaws
and its manual in instituting action to terminate the teach-
ing contracts of both Professors Illo and Greenberg. Presi-
dent Van Note denied the accusation, stating he had
followed the proper procedures. Weinberg also voiced criti-
cism of Roger F. Cozens, president of the alumni associa-
tion , for having requested the dismissal of these two
professors, particularly since Cozens had not attended the
convocation on April 22, when General Maxwell Taylor's
"aborted speech" incident occurred. See General Counsel's
Exhibit No. 2, a copy of the publication of the alumni
association , which includes at page 2 , a statement of the
Alumni Association and a letter signed by Weinberg and
three other alumni.
Shortly thereafter, in "mid-June," Weinberg had lunch
with Tompa, at which time they discussed the fall schedul-
MONMOUTH COLLEGE 557
ing, FAMCO, and, as Weinberg phrased it, "possible reper-
cussions against me for my activities." Weinberg explained
that he told Tompa it was his belief FAMCO "was the only
vehicle [that] could correct the inequities on the Monmouth
College campus with respect to salary and due process... .
He [Tompa] responded to me that he had been initially
interested in FAMCO but that now, he felt it would have
been bad for the college." Tompa testified that the meeting
was "basically" as testified to by Weinberg.
After this luncheon meeting in mid-June, Weinberg testi-
fied, on cross-examination, Tompa's attitude toward him
"abruptly changed." 4 Up until the time of this June lun-
cheon meeting , Weinberg described his "relationship" with
Tompa as being "good." When asked, on cross-examina-
tion, to state the basis for his stating that Tompa's attitude
toward him "abruptly changed," he testified as follows:
Several things. One, even though I had been heavily
involved in the scheduling process, after mid-June, Mr.
Shapiro, professor of marketing, was called in when
there was some changes necessary for the fall schedul-
ing, even though I had all the information on the top
of my head. . . . That would have been, I believe, the
end of July or early August.
Weinberg went on to explain that Tompa, instead of con-
sulting with him, inasmuch as he had done all the arranging
on the schedule changes, turned the matter over to Professor
Shapiro. Other manifestations of Tompa's change in atti-
tude, continued Weinberg, were:
In terms of personal relationship, a lack of communica-
tion in that Dr. Tompa no longer talked to me when he
saw me , but, rather, responded to me only when he had
no choice. And that is when he happened to run into
me, would nod his head or possibly say "hello" if I said
"hello" first . . . I recognized a severe break in the
relationship . . . a patently obvious change in attitude
... in early July, August.
There was no communication with Tompa, testified
Weinberg, until he spoke with him at a departmental picnic
on September 5, 1970. At that time, Weinberg asked Tompa
whether a planned course on "utopian and proletarian liter-
ature, titled, `Literature of Dissent,' " which he and another
professor had requested permission to teach during the
coming semester, had been approved. Tompa then in-
formed him that Everett Holt, dean of faculty, had disap-
proved their request, to which Weinberg responded,
"Possibly Dean Holt is not interested in me as an instruc-
tor?" to which Tompa replied, "That is possible." Weinberg
was not appointed to any faculty committees for the semes-
ter commencing September 14, 1970, although he had
served on various committees the previous academic year.
On November 18, 1970, Tompa summoned Weinberg to
his office and notified him that his teaching contract for the
1971-72 academic year would not be renewed. Weinberg
testified Tompa stated "that the interests of the business
administration department and my continued employment
were not in alignment." Weinberg remonstrated with Tom-
pa, reminding him that Tompa had commended his compe-
tency in the past, but to no avail. Weinberg then insinuated
4 See Resp Exh 2
that the decision to dismiss him had been determined by
"other sources," to which Tompa replied that Weinberg was
"entitled to his opinion." Tompa offered Weinberg his rec-
ommendation when he sought a teaching position else-
where, but Weinberg told him he would not trust such a
recommendation as he had received information that the
college had already "attempted to blackball [Professor]
John Illo in various community colleges in the state," which
charge Tompa denied.
Credibility Resolutions
Weinberg appeared to be a truthful witness who gave a
forthright version of the circumstances which brought about
his discharge. The impression that his testimony is trustwor-
thy is substantiated by certain undisputed and demonstra-
ble facts in this case, hereinafter explicated, and which were
not shaken by able counsel for the Respondent, who
thoroughly cross-examined him. Tompa testified that all
faculty members who were doctoral candidates were re-
quired to submit in March and November of each year,
information on forms furnished to them by the college indi-
cating the progress they were making. It is uncontroverted
that Weinberg did file the requested information with Tom-
pa, beginning from the time he began his doctoral studies
at New York University until the time his teaching contract
with Monmouth College was terminated.5
When Tompa was asked if he had read the doctoral pro-
gress reports which Weinberg had filed with him, he es-
chewed making a direct response and resorted to giving
enigmatic replies and obscure answers. After considerable
evasion, he stated he had "perused" these reports. When
asked if he ascribed the same connotation to the word "pe-
ruse" as he did to the word "read," Tompa answered, after
some equivocating, "I read them," specifying two of the
reports. It appears that Weinberg, from the time he matricu-
lated at New York University until his teaching contract
with Monmouth College was terminated, did file four such
reports. Furthermore, Tompa, in a sworn affidavit which he
gave to a Board investigator, stated that among the consid-
erations entering into his decision to recommend that
Weinberg's teaching contract not be renewed was the repos-
session of Weinberg's automobile by the sheriff. At the
hearing, Tompa testified that this assertion was incorrect
and he wished to "eliminate that statement completely." 6
See section III, supra.
Tompa's denial that Weinberg's activities on behalf of
FAMCO was not a factor in his determination to recom-
mend termination of Weinberg's teaching contract is not
credited.
5 Weinberg testified that the college placed in his mailbox each semester-
in March and November-a form requiring him to furnish information with
respect to the courses he was taking and the estimated date of completion
of his doctoral degree. which he properly completed and placed in Tompa's
mailbox
6 Prior inconsistent statements are admissible , not as affirmative evidence
to prove the truth of what they affirm, but only as matter tending to show
that the witness is not credible, because he has changed his story N L R B
v Quest-Shon Mark Brassieres Co, 185 F 2d 285, 289 (C A 2)
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Discussion
In the law of labor relations, the term "discrimination"
most often refers to an inequality of treatment based upon
discriminatory employment practices on the part of em-
ployers to discourage employees' organizational activities
for purposes of collective bargaining. An employer may
discharge an employee for any cause, or no cause, as long
as the discharge is not motivated by activities protected by
Section 7, or proscribed by Section 8(a)(3) of the Act .7 The
fact that an employee is a union member affords him no
protection against a discharge for cause .8 However, the ex-
istence or assertion of a valid reason for discharge does not
necessarily indicate that this reason constituted the real
cause for discharge nor does the existence of a valid cause
provide a defense unless it is the moving cause for the
discharge.9 Nor does the failure of an employer in an unfair
labor practice proceeding to show proper cause for a dis-
charge relieve the General Counsel from his burden of es-
tablishing that the discharge was motivated by proscribed
considerations. On the other hand, the unconvincing char-
acter of proffered reasons for a discharge is also a signifi-
cant factor in determining whether or not the discharge was
improperly motivated.10 Although discharge of an ineffi-
cient employee is lawful, it may become discriminatory if
other circumstances reasonably indicate it was the
employer's animus toward an employee's protected activi-
ties which weighed more heavily in the decision to discharge
him than did dissatisfaction with his ability or the quality
of his work." The General Counsel, in order to prove a
prima facie case, must show that the alleged discriminatee
engaged in activities protected by Section 7 of the Act; that
the Respondent knew he was engaged in such conduct prior
to his discharge; and that he was discharged as the result of
having engaged in such conduct.
Analysis of the Testimony and Conclusions
Wemberg's testimony stands uncontradicted that neither
at the time he was interviewed nor when his application for
employment was accepted in March 1969 was he told by
either Tompa or Everett Holt, dean of faculty, that a doctor-
7 Section 7.
Employees shall have the right to self-organization, to form, Join, or
assist labor organizations , to bargain collectively through representa-
tives of their own choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec.
tion, and shall also have the right to refrain from any or all such activities
Section 8(a).
It shall be an unfair labor practice for an employer-(l) to interfere
with , restrain , or coerce employees in the exercise of the rights guaran-
teed in Section 7;
(3) by discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage member-
ship in any labor organization
s N L R B v. Solo Cup Company, 237 F 2d 521, 525-526 (C.A 8, 1956)
9 N.L R B v Texas Independent Oil Company, Inc, 232 F 2d 447, 450 (C A
9, 1956).
'0 N L R B v WTVJ, Inc, 268 F 2d 346, 348 (C A 5, 1959 ). See Ft Worth
Steel, 125 NLRB 371, 372, where the Board held that a multiplicity of reasons
given for a discharge indicates they are pretextuous
ii N.L R B v Whtttn Machine Works, 204 F 2d 883, 885 (CA 1, 1953).
al degree constituted a requisite toward either his initial or
continued employment. Although Weinberg already held a
master's degree, he nonetheless enrolled as a doctoral candi-
date at New York University 3 months after his employ-
ment by Monmouth College. Weinberg's testimony is
unrefuted that, other than Tompa's inquiring of him "casu-
ally" how he liked New York University, they had no fur-
ther conversation on the subject as Tompa never referred
again to the matter of Weinberg's progress toward his doc-
toral degree. Weinberg testified:
I have been completing six credits per semester which
is the maximum amount allowable to me at New York
University. I have discussed and decided on a disserta-
tion topic, conferred with my graduate advisor at New
York University on my dissertation topic . . . I have
completed six credits per year, which is every semester
since January of 1970.12 I have discussed and decided
on a dissertation topic with my graduate advisor at
New York University, and have made plans to begin
my dissertation in June 1972.
Weinberg needed, therefore, as of January 1970, when he
commenced his doctoral studies, 30 credits in order to ob-
tain a doctor of philosophy degree. New York University's
school of graduate study restricts a doctoral candidate, who
is employed full time, to taking only a maximum of 6 credits
a semester or 12 credits each academic year. Under the
prescribed 12 credits a year program, Weinberg would have
completed his doctoral course work by June 1972. Weinberg
had chosen the topic for his dissertation and had already
begun research on it at the time of his termination.
Weinberg was not only a "vociferous" and a letter-writing
proponent for FAMCO, but he was also in the forefront, if
not one of the leaders, of those defending Professors Illo
and Greenberg against the proposed action of the college
administration to terminate them for their alleged role in the
so-called General Taylor incident. Prior to the time that
Weinberg was elected a member of FAMCO's executive
committee on May 28, 1970, he contacted and discussed
with his colleagues, including Tompa, the merits of FAM-
CO and solicited them tojoin this professional labor organi-
zation. In the words of Weinberg, "I, generally speaking,
agitated within my department and outside of my depart-
ment for a labor union within the faculty."
There is no question that both Tompa and the college
officials were aware of Weinberg's protected activities on
November 18, 1970, the day that he was notified that his
contract would not be renewed for the academic year 1970
-71.On direct examination by Respondent's counsel, Tom-
pa acknowledged that at the time of the mid-June luncheon
meeting, he knew Weinberg was a member of FAMCO's
executive committee and was aware of Weinberg's activities
within the business administration department on behalf of
FAMCO although he could not recall whether he had such
knowledge in the "late fall" of 1969, when he assigned to
Weinberg the function of scheduling. However, shortly after
the June luncheon meeting at which Weinberg suggested
that Tompa join FAMCO, Tompa opined that FAMCO
would be "bad" for the college. Noteworthy is Tompa's
12 It is uncontradicted that at the time of his termination on November 18,
1970, Weinberg had completed six credits, and he was in the progress of
completing another six credits, which he did complete in June 1970
MONMOUTH COLLEGE
testimony that this June meeting was basically as testified
to by Weinberg. Weinberg testified that shortly after the
June meeting , Tompa's attitude toward him "abruptly
changed" although he described his relationship with Tom-
pa as having been "good" prior to this time. See section III,
supra.
It is not too unreasonable to assume Tompa was alluding
to this abrupt change in attitude when he testified that, in
addition to Weinberg's not making sufficiently rapid pro-
gress in obtaining his doctorate, that there also existed sub-
jective factors between himself and Weinberg which he
described as being a "lack of communications ... perhaps
a gap in terms of our relationship . . . . Maybe a personality
difference , lack of understanding of one another, the lack
of rapport in a sense ." See section III, supra.
Tompa's testimony , professing that he had only a vague
recollection of what Weinberg listed on his twice -yearly
progress reports, strains one 's credulity. Inasmuch as it was
he who charged Weinberg with lack of sufficient progress,
he had the correlative obligation to have completely accu-
rate and well-founded knowledge of what Weinberg report-
ed with respect to his doctoral progress, before he made
such a grave decision to terminate him, a judgment which
he knew would injuriously affect Weinberg's professional
career . Furthermore, the summary manner in which Wein-
berg, whose competency is unquestioned, was terminated is
not natural and gives rise to a doubt as to the good faith of
the reasons assigned when the applicable rules of New York
University's graduate school are considered , which would
not permit a part-time doctor of philosophy candidate to
take more than 12 credits per academic year. Proscribed
motivation for Weinberg's termination is an inevitable con-
clusion when Tompa 's dubious testimony is considered,
which reads as follows:
I felt that a part time Ph.D. candidate is inevitably in
a difficult situation because of his full time obligations
to a college . . . . Well, I base that on my own experi-
ence as a part time Ph.D. candidate and taking approx-
imately nine years from the day I started to the time I
finished . Also, I am rather surprised that N.Y.U. allows
part time Ph.D. candidates. It is my understanding that
most universities require residency requirements-to
have their people there on a full time basis . . . . How-
ever, I know it isn't a surprise in the sense that I am
astounded. I know graduate business administration of
N.Y.U. also has a part time program.
A realistic appraisal of the facts compels the conclusion
that alleged lack of progress on Weinberg's part in obtaining
his doctoral degree were afterthoughts on the part of the
college officials and had no part in the decision to discharge
him but were a pretext to rid itself of him because of his
protected activities . This finding is further corroborated
when a comparison is made of Weinberg' s progress with
that of Professors Nimitz and Greening , faculty members of
the business department , who are also part-time doctoral
candidates . Nimitz, who has taught at Monmouth College
for I1 years, has not yet obtained his doctorate, and Green-
ing has been pursuing his Ph . D. since 1960. An unfavorable
deduction , bearing all the earmarks of invidious discrimina-
tion , is an inevitable inference when the progress of these
two faculty members are compared with Weinberg's own
559
progress. It is believed, therefore, that there is considerably
more than a coincidental connection between Weinberg's
FAMCO activities and his advocating Professors Illo's and
Greenberg's reinstatement , which eventually culminated in
his discharge.
Based upon an analysis of the facts detailed above , as well
as the probabilities inherent in this situation , to ask the
question, whether Respondent Monmouth College discrim-
inatorily discharged Weinberg, is to answer the question
because the facts belie Tompa's pretextuous explanations
and the inferences to be derived from them only reveal
Respondent's proscribed conduct. Against this simple fact
pattern , then , in determining the basic issue whether Wein-
berg was terminated due to his lack of making progress to
obtain his doctor of philosophy degree, or for any other
discriminatory reason within the meaning of Section 8(a)(3)
of the Act, it is concluded that the insufficient doctoral
progress reason, given as Respondent 's defense, not only
fails to withstand scrutiny, but its efforts to exonerate itself
from a finding that it had committed unfair labor practices
are singularly unimpressive . Buttressing this conclusion is
Tompa's own testimony that the ability or professional
quality of Weinberg's performance while a member of the
Monmouth College faculty was never questioned by him.
Furthermore, when Weinberg 's teaching contract was re-
newed in 1970, he not only received a wage increase but he
was entrusted by Tompa with administrative duties which
he discharged completely and efficiently. Only after Wein-
berg became interested in FAMCO did Tompa become
disenchanted with Weinberg and the alleged lack of pro-
gress he was making in attaining his doctorate status. More-
over, the record is devoid of any suggestion as to why, with
an unblemished professional record, Respondent would
suddenly charge that Weinberg was no longer employable
because of his unsatisfactory progress in obtaining his Ph.D.
when this alleged reason has been shown by Tompa's own
admission to be fallacious in that Weinberg's progress was
as fast as possible under the 12-credits-a-year limitation on
part-time Ph.D. candidates attending New York
University's School of Graduate Studies. Tending to belie
this fictitious criticism of Weinberg's progress is the cogent
fact that at a general faculty meeting held on May 5, 1971,
it was moved and passed that the recommendations of the
faculty appellate committee should be supported, which
recommended that Weinberg be reappointed to his former
position as a member of the faculty of the department of
business administration . The motion reads as follows:
In order to grant justice to Arthur Weinberg and pre-
serve academic freedom, the faculty expects that the
Dean of Faculty will implement the immediate is-
suance of reappointment to Arthur Weinberg.
These insubstantial explanations, which were subsequently
advanced to justify Weinberg's discharge, his exemplary
service, a renewal of his teaching contract in 1970, and an
increase in salary, compels the conclusion that the decision
to discharge him was not made until Respondent learned of
his union activities and protected activities on behalf of
Professors Illo and Greenberg.13 This is a situation where,
13 Cf N L R B v Sutherland Lumber Co , 452 F 2d 67 (C A 7, 1971)
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is believed , the Respondent College has characterized the
union and the protected activities for which Weinberg was
discharged , as having been unsatisfactory progress toward
his doctorate degree , in an effort to justify its discrimination
against him.
On the basis of the foregoing , and the entire record, in-
cluding the suggestive circumstances inhering in Weinberg's
discharge , at the same time he was engaged in the aforemen-
tioned protected activities which were the motivating cause,
his termination found to be a violation of Section 8(a)(3) of
the Act.
Respondent's contention that Weinberg was a probation-
ary employee during the 14 months he was a faculty mem-
ber, and therefore could be discharged at any time and for
any reason ex abundante cautela, is without merit . Respon-
dent had no such impunity although it could have dis-
charged Weinberg for any cause at any time before he had
acquired tenure except where his termination was discrimi-
natorily motivated , as here , within the meaning of Section
8(a)(3) of the National Labor Relations Act. See footnote
7. The rights of probationary employees are normally the
subject of collective -bargaining agreements as such provi-
sions are mandatory subjects for bargaining . 14 However,
such a contractual clause covering a probationary employee
does not affect his rights under the Act. In one case, the
Board found a violation of Section 8(a)(3), where one of the
contract terms specified that the employer could discharge
a probationary employee without any explanation to the
union . The Board held this provision did not grant the
employer a "license under Federal law to interfere with or
discriminate against such employees for the exercise of their
rights to self-organization or to refrain therefrom." 15
CONCLUSIONS OF LAW
Respondent Monmouth College, by terminating the con-
tract of Arthur S. Weinberg because of both protected and
union activities , engaged in unfair labor practices affecting
commerce within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
THE REMEDY
It shall be recommended that the Respondent cease and
desist from its unfair labor practices and that it offer to
reinstate Weinberg with backpay computed in accordance
with the formulas set forth in F. W Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Monmouth College, its officers , agents,
successors , and assigns shall:
1. Cease and desist from:
(a) Discouraging membership in Faculty Association of
Monmouth College, or any other labor organization, by
discharging or in any other manner discriminating against
employees in regard to their hire or tenure of employment
or any terms or conditions of employment.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Arthur S.
Weinberg to his former position or, if this job no longer
exists , to a substantially equivalent position , without preju-
dice to his seniority or other rights and privileges , and make
him whole for any loss of pay suffered by reason of his
discharge or refusal of reinstatement , all in the manner set
forth in the section of this Decision entitled , "The Remedy."
(b) Expunge from Arthur S. Weinberg 's personnel rec-
ords all derogatory statements which disparage his profes-
sional ability , competence , and reputation.
(c) Notify Arthur S. Weinberg immediately, if he is pres-
ently serving in the Armed Forces of the United States, of
his right to full reinstatement , upon application after dis-
charge from the Armed Forces, in accordance with the Se-
lective Service Act and the Universal Military Training and
Service Act.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, Social Security payment records , timecards, per-
sonnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(e) Post at its college at West Long Branch , New Jersey,
copies of the attached notice marked "Appendix." 17 Copies
of said notice , on forms provided by the Regional Director
for Region 22, after being duly signed by Respondent's
representative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 consec-
utive days thereafter , in conspicuous places, including all
places where notices to employees and faculty members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Region 22, in writ-
ing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
16 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and order , and all objections thereto shall be deemed
waived for all purposes
17 In the event that the Board 's Order is enforced by a Judgment of a
14 Oliver Corporation, 162 NLRB 813, Frohman Co, 107 NLRB 1308 United States Court of Appeals, the words in the notice reading "Posted by
15 Lapeer Metal Products Co, 134 NLRB 1518, 1520 Accord Loose Leaf Order of the National Labor Relations Board" shall read "Posted Pursuant
Metals Company, 181 NLRB 202 Cf National Torch Tip Co , 107 NLRB to a Judgment of the United States Court of Appeals Enforcing an Order of
1271 the National Labor Relations Board "
MONMOUTH COLLEGE 561
herewith.I"
18 In the event this Order is adopted by the Board after exceptions have
been filed, this provision shall be modified to read "Notify the Regional
Director for Region 22, in writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer reemployment to Arthur S. Weinberg,
and WE WILL pay him for losses he suffered as a result
of our having discharged him on November 18, 1970.
WE WILL NOT discharge or otherwise discriminate
against any employee because of his activity on behalf
of Faculty Association of Monmouth College.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees and/or faculty
members in the exercise of their right to join or assist
that Union or any other anion.
(Employer)
Date: By:
(Representative) (Title)
WE WILL notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance wth its provisions may be directed
to the Board's Office, Region 22, Federal Building, 16th
Floor, 970 Broad Street, Newark, New Jersey 07102,Tele-
phone 201-645-2100.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HENRY S . SAHM , Administrative Law Judge: On January
13, 1972, I issued a Decision herein finding that Respondent
violated Section 8(a)(3) and (1) of the Act, by discriminato-
rily terminating Arthur S. Weinberg, a member of the facul-
ty of Monmouth College. On June 16, 1972, the Board
issued its Order remanding proceeding which reads in perti-
nent part as follows:
The Trial Examiner I found that Respondent had
engaged in and was engaging in certain unfair labor
practices and recommended that it cease and desist
therefrom and take certain affirmative action as set
forth in the Trial Examiner's Decision. Thereafter, Re-
spondent filed exceptions and a brief in support of the
exceptions, asserting, inter alia, that the Trial Examiner
erred in certain of his rulings that precluded it from
introducing relevant evidence on the disputed issues.
The General Counsel filed a reply brief and the Charg-
ing Party filed a brief in opposition to exceptions filed
by Respondent.
The Board has considered the record, Respondent's ex-
ceptions, and the briefs and finds merit in certain of
Respondent's exceptions relating to the exclusion of perti-
nent evidence. The Board also finds that the Trial
Examiner's exclusion of evidence offered by the General
Counsel and the Charging Party renders the record incom-
plete in certain important respects bearing on the complaint
allegations. It therefore directs that evidence be taken on the
following issues:
1. The union animus of Respondent, or lack thereof.
2. Weinberg's alleged concerted activity on behalf of fa-
culty members Illo and Greenberg, including Weinberg's
statements at the meetings of June 5 and 8, 1970, and the
letters to the editor in the alumni publication; the testimony
of faculty member Rouse and any other testimony bearing
MONMOUTH COLLEGE on Weinberg's activity.
3. Respondent's efforts to upgrade the business adminis-
tration department, including the time when Respondent
made such decision; the testimony of faculty member Lang-
bein or others on that issue; the market situation respecting
the availability before September 1970 of teaching person-
nel holding Ph.D. degrees and Respondent's knowledge of
it.
4. Evidence of disparate treatment between Weinberg
and other faculty members in the failure to renew the
Weinberg's teaching contract, including the number of fa-
culty members without Ph.D. degrees who were retained for
the 1971-72 college term; the number of non-Ph.D. holders
in the business administration department working toward
that degree when Weinberg's contract was not renewed but
whose completion date was the same or later than
Weinberg's, the number of department faculty members
without a Ph.D. who were hired after Respondent decided
not to renew Weinberg's teaching contract.
Pursuant to notice served upon the parties by the Region-
al Director, a supplemental hearing on the Board's remand
was held on September 21 and 22, 1972, at Newark, New
Jersey. The parties appeared by counsel and were afforded
full opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence within the scope di-
rected and permitted by the Board's Order of remand.
Upon the conclusion of the taking of testimony, the parties
were ordered to file briefs which were received on October
27, 1972, and have been duly considered.
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 12, 1972
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
The Union Animus of Respondent or Lack Thereof
When Weinberg 's election on May 28 , 1970, as a member
of the executive committee of FAMCO [Faculty Associa-
tion of Monmouth College] , became a matter of public
knowledge , the Respondent 's union animus toward him be-
came apparent as evidenced by Tompa's luncheon -meeting
with Weinberg in "mid-June ," about 4 months after the
college had issued to all faculty members its proposed con-
tracts for the academic _year 1971-72.1 At that meeting one
of the subjects of conversation was "possible repercussions"
against Weinberg "for his activities" which included
Weinberg's "vociferous" efforts on behalf of Professors Illo
and Greenberg, particularly Weinberg leveling serious
charges against Respondent 's President Van Note. These
activities of Weinberg continued until he was notified by
Tompa on November 18, 1970, that he was discharged.'
Based upon these circumstances , it is not too unreasonable
to conclude, and it is so found , that union animus generated
by Weinberg's protected activities was the operative moti-
vation behind Respondent 's decision not to renew his teach-
ing contract 4
Then, too, there is the colloquy between Weinberg and
Tompa on September 5, 1970, at the picnic of the business
administration department , of which Dr. Tompa is chair-
man, at which time Weinberg inquired of Tompa whether
his request to teach a new course had been approved. When
Tompa responded that Everett Holt, dean of faculty, had
disapproved his request , Weinberg stated , "Possibly Dean
Holt is not interested in me as an instructor," to which
Tompa made the reply, "That is possible ." Weinberg's
union activities and his aggressive involvement in the Illo-
Greenberg affair , particularly his challenging President Van
Note by asking at the alumni meeting for a vote of "no
confidence" against Van Note , is significant as hereinafter
explicated , when considered in the context of Tompa's an-
swer that Dean Holt was "possibly" not interested in Wein-
berg as an instructor . It is not too unreasonable to assume
that Tompa 's statement was meant as not only a foreboding
prediction of Weinberg's bleak professional prospects at
Monmouth College but also an intimation that Weinberg's
extracurricular activities had rendered his continued tenure
at the college dubious. Lending credence to the validity of
this premise is Tompa 's concurrent attitude and treatment
of Weinberg which "abruptly changed" after Weinberg be-
gan his protected activities and eventuated 6 weeks later in
Tompa notifying Weinberg that his teaching contract would
not be renewed for the 1971-72 academic year . This change
2 Weinberg's activities on behalf of FAMCO commenced in September
1969, when he assumed his duties as an instructor in economics
3 Weinberg testified that he asked Tompa, beyond the reasons he had given
him, why he was terminated . When Tompa refused, Weinberg asked if it was
his activities on behalf of FAMCO or his "political activities" that was the
basis for the nonrenewal and, according to Weinberg, Tompa answered'
"No, not for those reasons"
4 The college brought charges against Illo and Greenberg for alleged disor-
derly conduct when General Maxwell Taylor addressed the students and
faculty on April 22, 1970. On June 3, 1970, Weinberg met with certain people
for the purpose of helping Illo and Greenberg by raising funds for their
defense among faculty and students
of attitude on Tompa's part, which began about September
1970, is evidenced by the following incidents: Tompa
ceased discussing with Weinberg class scheduling and took
this assignment away from him which he had heretofore
performed from January to the "end" of April 1970, even
though Tompa repeatedly had complimented Weinberg for
the excellent scheduling job he had performed. Further-
more , Tompa did not appoint Weinberg to any departmen-
tal committees as he had in the past, and he no longer
delegated to Weinberg after June 19, 1970, the task of inter-
viewing and corresponding with applicants for faculty posi-
tions, although he had asked Weinberg in February 1970
whether he would screen applications for departmental hir-
ing for the academic year of 1970-71.
This sequence of events is believed to be more than a
mere temporal coincidence, when it is considered that in
April 1970, Tompa expressed his appreciation to Weinberg
for the excellent manner in which he had handled his sched-
uling and hiring assignments , stating , according to
Weinberg's credited testimony, that Tompa said to him
"...The only way I can thank you would be to show you
in contract increment and your monetary increment on the
next coming year." Probative of this conclusion that
Weinberg's termination was based on union animus, is
Tompa 's pharisaical assertion when he notified Weinberg
his contract would not be renewed, "that the interests of the
business administration department and [Weinberg's] con-
tinued employment were not in alignment."
Much of the evidence requested in items 2, 3, and 4, supra,
relevant to the sole issue in this case as to whether Weinberg
was discriminatorily terminated within the meaning of Sec-
tion 8(a)(3) of the Act, will be found in the decision of
January 13, 1972, with the exception of the testimony of Dr.
Rouse and Dr. Langbein which is detailed below.
Dr. Robert S. Rouse, chairman of the chemistry depart-
ment and associate dean of faculty, testified that there was
no anti-FAMCO position taken by the college during the
year 1970. He also testified that the Illo-Greenberg matter
came to his attention immediately after the General Max-
well incident which occurred on April 22, 1970. He stated
Weinberg was not in "the forefront of those activities,"
naming tenured Professors Rechnitz , Benjamin Rigberg,
and Mays and Gardner as being more active than We4n-
berg.5 Rouse testified he first became aware of Weinberg's
interest in the Illo-Greenberg matter when he attended the
Alumni Association meeting on June 16, 1970, "to discuss
the events . . . surrounding the student strike on the cam-
pus of Monmouth College." Rouse added that Weinberg
was "active" also in the student strike which occurred in
May 1970. Rouse stated that the following members of
FAMCO's executive committee were not tenured faculty
members in May 1970: Janet Weinberg, James Flanagan,
Arthur Weinberg, and William Yaremchuk. See
Respondent's Exhibit 8 which is a collective-bargaining
agreement executed on August 17, 1971, between FAMCO
and Monmouth College.
Dr. Rouse also testified with respect to the following
matters: of Monmouth's approximately 200 faculty mem-
5 See Resp. Exh 6 and 7. Also Resp. Exh. 1, "Faculty Handbook," p. 29,
"Tenure."
MONMOUTH COLLEGE
bers, about 63 to 66 percent of them have tenure. Tenured
faculty members enjoy a special status , entitling them to
automatic reappointment, except in special circumstances
not pertinent herein. In January or February 1971, Rouse
stated that he had a "casual conversation" with Weinberg
with respect to the "Faculty Committee," but the substance
of it he could not recall. He testified that the unusual
amount of activity on campus from November 1970 to Feb-
ruary 1971, "arose from many factors, including Mr.
Weinberg's [contract] renewal."
Leland A. Langbein is a professor of economics in the
business administration department at Monmouth College.
He testified that the American Association of Collegiate
Schools of Business require 40 percent of the faculty to have
doctor of philosophy degrees and that in September 1971,
33 percent of Monmouth's business administration depart-
ment faculty had Ph.D.'s. Langbein also testified that since
September of 1970, there have been four appointments to
the facultyy of the business administration department: Dr.
Costigan, Dr. Hopmayer, Dr. Peterson,7 and George
Wright. All of these appointees hold Ph.D.'s except Wright,
who has a doctor of jurisprudence degree. In September
1970, the business administration department had 14 facul-
ty members of whom 4 had tenure, and 10 did not have
tenure. In September 1970, there were six teaching person-
nel in the economics area of concentration of the depart-
ment of business administration.' At that time , Greening,
Morse, Nemitz, and Weinberg were nontenured and Feist
and Langbein tenured. Morse, who was nontenured and
hired a year after Weinberg, was retained after Weinberg's
contract was not renewed. In a reduction-in-force, testified
Langbein, the ones who would be terminated first would be
nontenured members of the faculty.
General Counsel's Exhibit 10, which is captioned "Facul-
ty Members of Business Administration Department as of
November 18, 1970-Hiring Dates-Positions-Academic
Credentials-Progress toward Ph.D. as of that Date," is
alleged by the representative of the General Counsel to be
responsive to the evidence requested in item 4 of the Board's
remand. This exhibit lists the 27 names of all the instructors,
professors, associate professors, and assistant professors in
the business administration department as of November 18,
1970. It shows 5 faculty members to have Ph.D.'s; 4 working
on their Ph.D.'s,9 and 18 not studying for Ph.D.'s. William
6 Weinberg testified Costigan had a Ph . D. from Princeton University
7 Weinberg was replaced by Eric Peterson.
8 "Economic area of concentration" includes those who predominantly
teach economic subjects. Other areas in the business administration depart-
ment are accounting , marketing, management , business law, and business
education
9 Of the four business administration department faculty members work-
ing toward Ph.D.'s two have been working on their Ph D's since 1963 and
two since 1970. In 1972, two additional professors with Ph.D.'s joined the
563
Feist, an assistant professor with a master's degree in eco-
nomics, employed in 1967, discontinued his Ph.D. program
and was subsequently accorded tenure.
Langbein testified that of the 24 faculty members in the
business administration department, 7 had Ph.D.'s and 17
did not. Langbein, when asked the number of department
faculty members without a Ph.D. who were hired after No-
vember 18, 1970, the date Weinberg was notified that his
contract would not be renewed, testified that he knew of
only one, George Wright who has a doctor of jurisprudence
degree. He also testified that before September 1970, teach-
ing personnel holding Ph.D.'s "were rather difficult to get;
but after that the market changed after that time." Langbein
went on to explain that prior to 1970, Ph.D.'s in economics
were easier to obtain than those Ph.D.'s in accounting, ad-
vertising, marketing, and management but, he continued,
Ph.D.'s in economics were "somewhat more plentiful" and
that in November 1970 there were still more available. It
appears, although it is not clear, that the Respondent's al-
leged efforts to upgrade the department for the academic
year 1971-72 commenced in the fall of 1970.
Langbein testified that he knew of Weinberg's activities
on behalf of Illo and Greenberg but that there was no
"anti-FAMCO animus" in the department nor did he have
any knowledge of disparate treatment of Weinberg.
On cross-examination Langbein testified that as of Sep-
tember 22, 1972, three faculty members, who are listed on
General Counsel's Exhibit 10, are no longer employed by
Respondent: Golwey, Renda, and Powers. Golwey retired,
Powers resigned, and Renda's contract was not renewed.
When Langbein was asked what nontenured members in
the department in addition to Weinberg were active in
FAMCO, Langbein answered that ". . . Renda was proba-
bly involved." Renda's contract was not renewed for the
1971-72 academic year.
Summing up, therefore, nothing is found in the evidence
adduced at the September 21 and 22, 1972, hearing to cause
me to change my view that Respondent, by terminating the
contract of Arthur S. Weinberg because of both protected
and union activities, engaged in unfair labor practices with-
in the meaning of section 8(a)(3) and (1) of the Act. Noth-
ing that has been added to the record of the first hearing
justifies a change in the conclusions set forth in the Decision
heretofore issued.
RECOMMENDATION
Upon the entire record herein and the demeanor of the
witnesses while testifying, my Decision issued on January
13, 1972, is reaffirmed and it is recommended that Respon-
dent comply with the Order recommended in it.
faculty of the department : Peterson and Costigan, although the latter was a
part-time professor in 1971 -