Mount Vernon College

National Labor Relations Board - Board Decisions

Apr 7, 1977

228 N.L.R.B. 1237 (N.L.R.B. 1977)

MOUNT VERNON COLLEGE 1237
Mount Vernon College and Mount Vernon College
Chapter, American Association of University Pro-
fessors, Petitioner . Case 5-RC-9627
April 7, 1977
DECISION AND DIRECTION
By CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On May 4, 1976, the Regional Director for Region
5 issued a Decision and Direction of Election in a
unit consisting of.
All full-time members of the teaching faculty,
part-time members of the teaching faculty who
formerly were full-time members of the teaching
faculty, including the academic advisor-career
counselor, but excluding the director of the
Learning Resource Center, the president, vice
president, dean, directors, assistant directors,
Office of Registrar employees, media technicians
and aides, administrative assistants, teaching
assistants, and all other administrative and
support personnel, guards and supervisors as
defined in the Act.
Thereafter, both the Employer and the Petitioner
filed requests for review of the Regional Director's
Decision and Direction of Election with the National
Labor Relations Board in Washington, D.C. The
Employer sought to exclude from the unit Renee
Taft, academic advisor-career counselor, and the
Petitioner sought to include Mary Hochman, direc-
tor of the Learning Resource Center. On May 25,
1976, the Board amended the Regional Director's
decision to permit Taft and Hochman to vote in the
election subject to challenge.
On June 1, 1976, a secret ballot election was
conducted under the supervision of the said Regional
Director. Upon conclusion of the election, a tally of
the ballots was furnished to the parties which showed
that 22 ballots were cast, of which 10 were for, and 10
were against, the Petitioner. There were two chal-
lenged ballots, those of Taft and Hochman. The
challenged ballots are sufficient in number to affect
the results of the election. No objections to conduct
affecting the results of the election were filed by
either party.
In accordance with the National Labor Relations
Board's Rules and Regulations, Series 8, as amended,
the Regional Director conducted an investigation of
the issues raised by the challenged ballots and, on
June 15, 1976, issued and duly served on the parties
his Report on Challenges and Notice of Hearing in
which he concluded that the challenges to the ballots
228 NLRB No. 153
cast by Renee Taft and Mary Hochman raised
substantial and material questions of fact and
credibility which could best be resolved by hearing.
Pursuant to notice, a hearing was held on August 2,
3, and 4, 1976, before Hearing Officer H. Quinn
Anderson. On October 19, 1976, the Hearing Officer
issued and duly served on the parties his Report on
Challenges and Recommendations, relevant portions
of which are attached hereto as an appendix, in
which he recommended that the challenges to the
ballots of Mary A. Hochman and Renee A. Taft be
sustained. Thereafter, the Petitioner filed timely
exceptions to the Hearing Officer's report and a
supporting brief, and the Employer filed a brief in
opposition to the Petitioner's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the Hearing Officer's
report in light of the exceptions and briefs and has
decided to affirm the Hearing Officer's rulings,
findings, and recommendations except as set forth
below.
1. The Hearing Officer found that Mary A.
Hochman, director of the Learning Resource Center
(hereinafter called LRC), is a supervisor within the
meaning of the Act and recommended that the
challenge to her ballot be sustained. He reasoned
that, although Hochman spends less than 50 percent
of her working time in actually supervising the
nonunit employees of the LRC, she should neverthe-
less be excluded as a supervisor because her
supervisory functions are not merely incidental to
her other faculty duties but are an integral part of her
duties as director of the LRC, and because she
spends most of her time at the LRC. The Hearing
Officer, therefore, distinguished the facts of this case
from those in Adelphi University, 195 NLRB 639
(1972), and found that case inapposite. We disagree.
In Adelphi University, supra, the Board for the first
time considered whether, in a university setting,
professional employees are rendered supervisors
merely because they have authority to hire and fire,
as well as effectively to direct, their own secretaries
and/or students who work as part-time employees.
The Board, applying the rule it had adopted in
Westinghouse Electric Corporation, 163 NLRB 723,
727 (1967), concluded that professional employees in
a university setting who devote less than 50 percent
of their working time to supervising nonunit employ-
ees, and more than 50 percent of their time in the
performance of their regular professional duties, were
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eligible to vote in the election. We have already
applied this rule to professional librarians' and can
find no compelling reason for not applying it here.
As more fully set forth in the attached excerpts
from the Hearing Officer's report, the record shows
that Hochman is a professional librarian with a
master's degree in library science. She is also a
member of the faculty with the rank of instructor.
Although she has no teaching responsibilities, Hoch-
man serves on faculty committees, is eligible to vote
in faculty meetings , has a faculty contract for the
academic year, is paid according to the faculty salary
matrix, and reports directly to the dean of academic
affairs. The Employer concedes that but for her
alleged supervisory status Hochman would be
eligible to vote in the election.
The LRC is basically a library which provides
audio and visual aid services to the college communi-
ty. As director, Hochman is responsible for the
overall operation of the LRC and its staff, consisting
of two media technicians, one associate media
specialist, one media aide, and between four and six
student-assistants who work on a part-time basis
during the academic year. Although it is clear from
the record that Hochman possesses and exercises
supervisory authority over the LRC staff, it is
undisputed that she does not supervise any members
of the bargaining unit.2 According to Hochman's
credited testimony, she spends less than 50 percent of
her time in performing supervisory functions.
In addition to her supervisory responsibilities,
Hochman is also responsible, together with the
Learning Resources Committee, for preparing and
administering the LRC budget which totaled
$121,200 for fiscal year 1977. In carrying out these
responsibilities, Hochman consults with the faculty
to be certain that the LRC will provide the books
and audio-visual materials and services required for
the particular courses given. Hochman selects or
approves the selection of all books, materials, and
equipment to be purchased for the LRC. She assists
and directs students in the research and preparation
of papers. She also conducts group sessions with
teachers and their students on effective use of the
LRC. She also meets with faculty to give bibhograph-
ical instructions. Hochman estimates that approxi-
mately 90 percent of her time is spent at the LRC
and that the remainder of her time is spent in acting
as liaison with other libraries, serving on the
1 New York University, 205 NLRB 4,8 (1973).
2 Hochman testified that employment of an additional part -time media
aide and a part-time media specialist is contemplated. She also testified that
the part-time specialist will be a professional librarian and a member of the
faculty However, in accordance with established precedent, we do not rely
on speculation as to a future change in duties as a basis for an employee's
inclusion in or exclusion from a unit. Brooklyn Borough Gas Company, 110
N LRB 18, 22 (1954), Hilton-Burns Hotel Co., Inc., Hilton Hotel Corporation
administrative council, and attending faculty meet-
ings.
Based on the foregoing, we find that Hochman is
first a professional librarian who shares a sufficiently
close community of interests with other members of
the unit to require her inclusion in such unit.3 She is
a member of the faculty with the rank of instructor;
she serves on faculty committees and is eligible to
vote in faculty meetings ; finally, she has a faculty
contract for the academic year and is paid according
to the faculty salary matrix. Although Hochman has
no teaching responsibilities, she is charged, as
director of the LRC, with the responsibility of
accumulating and providing to other members of the
college community appropriate materials and servic-
es utilized in the educational process. This is clearly
an integral element of her professional work as
librarian. In that connection, she also directs the
work of certain nonunit employees at the LRC. Such
supervision, however, is in conjunction with her
professional librarian responsibilities. As stated, the
record shows that she devotes less than 50 percent of
her time in directing or otherwise supervising the
LRC staff. The fact that she devotes 90 percent of
her time at the LRC performing professional work
does not warrant her exclusion from the unit as a
supervisor, even though she is the only supervisor
present at the LRC. Under the rule adopted in
Adelphia, we look to the amount of time spent by the
professional employee in actually performing super-
visory duties and not to the location where that work
is performed. To hold otherwise would result in
finding that every librarian, who also supervises
nonunit employees of the library, is a statutory
supervisor merely because the librarian performs
most of his or her professional work in the library.
Such a result would be ludicrous and would defeat
the rule adopted in Westinghouse, supra, and applied
to universities in Adelphi University, supra. This is
particularly true of professional librarians who must
necessarily spend the major portion of their working
time in the library.
Accordingly, in view of the foregoing, we find that
Mary Hochman is not a supervisor within the
meaning of the Act and we shall, therefore, overrule
the challenge to her ballot.
2. The Hearing Officer found that Renee A. Taft,
the academic advisor-career counselor, is not a
professional employee within the meaning of Section
Hale Kaanapali Hotels Associates, 167 NLRB 221, 222 (1967). In addition,
since the unit herein is limited to full-time employees and part-tune
employees who had previously enjoyed full-time status, it is not clear
whether or not the part-time librarian (media specialist) whom the Employer
contemplates hiring will be in the bargaining unit.
3 New York University, supra; C. W. Post Center of Long Island University,
189 NLRB 904,906 (1971).
MOUNT VERNON COLLEGE 1239
2(11) of the Act and that she does not share a
sufficient community of interest with the members of
the bargaining unit to warrant her inclusion in said
unit. He therefore recommended that the challenge
to her ballot be sustained. The Petitioner has
excepted to the Hearing Officer's finding and
recommendation. For the reasons fully set forth in
his report, we agree with the Hearing Officer's
finding and recommendation. Accordingly, the
challenge to Taft's ballot will be sustained.
Having overruled the challenge to the ballot cast
by Mary A. Hochman and having sustained the
challenge to the ballot cast by Renee A. Taft, we
shall direct the Regional Director to open and count
Hochman's ballot, and to prepare a revised tally of
ballots and, thereafter, to issue the appropriate
certification.
DIRECTION
It is hereby directed that the Regional Director for
Region 5 shall, pursuant to the Board 's Rules and
Regulations and Statements of Procedure , Series 8,
as amended , within 10 days from the date of this
Order, open and count the ballot of Mary A.
Hochman and, thereafter, prepare and cause to be
served on the parties a revised tally of ballots upon
the basis of which he shall issue the appropriate
certification.
APPENDIX
THE CHALLENGES
Mary A. Hochman
Both the Petitioner and the Employer agree that
Hochman is a professional librarian. The Employer
contends, however, that Hochman should be excluded as a
supervisor. The Petitioner contends that Hochman should
be included in the unit because she spends less than 50
percent of her time supervising employees who are not
included in the bargaining unit.
The Employer is an educational institution for women
with its campus and main offices located in Washington,
D. C. Hochman is employed by the Employer as Director
of the Learning Resources Center. She has a master's
degree in Library Science and she is a member of the
faculty with the rank of instructor. However, she has no
teaching responsibilities. Like other faculty members, she
serves on faculty committees, is eligible to vote in faculty
meetings, has a faculty contract for the academic year, is
paid according to the faculty salary matrix, and reports
directly to the Dean of Academic Affairs.
The Learning Resources Center (LRC) is essentially a
library which provides audio and visual aide services. As
Director, Hochman is responsible for the overall operation
of the LRC which includes supervising the LRC staff.
Reporting directly to Hochman are two media technicians,
one associate media specialist , and one media aide.
Additionally, the LRC employs between four and six
student assistants who work on a part-time basis during the
academic year . It is undisputed that Hochman does not
supervise any of the members of the bargaining unit. Her
only subordinates are the members of the LRC staff-four
full-time employees and four to six part-time student
assistants . In addition to the present staff, however,
Hochman testified that further employment of a part-time
media aide and a part-time media specialist is contemplat-
ed. Hochman further testified that the media specialist will
be a professional librarian and a member of the faculty.
Apart from her supervisory duties, Hochman, with the
advice and guidance of the Learning Resources Commit-
tee, is responsible for preparing and administering the LRC
budget amounting to $121,200 for the fiscal year 1977. She
is also responsible for developing and providing all books,
materials , and reference services appropriate for the needs
of the faculty and the students. In carrying out these
responsibilities, Hochman consults with the faculty to be
certain that the LRC will provide the books and services
required by the courses given. Hochman selects or
approves the selection of all books , materials and equip-
ment to be purchased for the LRC. She assists and directs
students in the research and preparation of papers . She also
conducts group sessions with students on effective use of
the LRC. Hochman estimates that approximately 90
percent of her working time is spent at the LRC performing
her duties as Director of the LRC. Her limited work duties
outside the LRC consist mainly of acting as liaison with
other consortium libraries , serving on the administrative
council, and attending faculty meetings.
In regard to her supervisory duties, Hochman assigns
and directs the work of the regular LRC staff. She
schedules their hours of work and approves employee
requests for time off. Hochman has the authority to
recommend employment, promotion , and continued ap-
pointment of the media technicians , associate media
specialist and media aide and has , in fact, done so.
Normally, the Dean of Academic Affairs or the College
President has the final authority respecting these personnel
decisions . One one occasion, however , Hochman, pursuant
to instructions from the College President, made the final
decision to hire a media technician. Additionally, Hoch-
man has the overall responsibility and authority to hire and
fire student assistants , although Mary Kasamatsu , a media
technician, has been delegated the authority to hire, fire,
and supervise the student assistants on a daily basis.
Although Hochman has the authority to discipline all LRC
staff employees, she has not exercised this authority.
As to the exercise of her supervisory duties, Hochman
testified that she assigns staff members to areas of library
work in which they function without daily supervision.
Most problems which arise are handled at staff meetings.
On rare occasion , Hochman transfers employees from one
job to another job. Hochman monitors and evaluates the
work performance of LRC staff members by observing
employees at work , discussing the work assignments with
employees at staff meetings and reviewing purchase orders
completed by the employees. Hochman estimates that she
spends less than four hours per week performing her
supervisory duties.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In sharp contrast to Hochman's testimony, College
President Peter D. Pelham testified that in his view,
Hochman would have to devote more than 50 percent of
her time to supervising the LRC staff. President Pelham
conceded that his testimony was based upon his experience
as an educational administrator for the past 17 years, not
on direct observation of Hochman's work.
In Adelphi University, 195 NLRB 639 (1972), the Board
held that it would not exclude faculty members from a
professional unit as supervisors merely because they
infrequently exercise supervisory authority over non-unit
employees, drawing the line for that purpose at faculty
members who spent more than 50 percent of their time
supervising non-unit employees. Included in the unit were
the college director of admissions who supervised a
secretary and the director of motion picture studies who
would supervise part-time student employees upon their
employment. The Board explained:
. an employee whoseprincipal duties are of the same
character as that of other bargaining unit employees
should not be isolated from them solely because of a
sporadic exercise of supervisory authority over nonunit
personnel. No danger of conflict of interest within the
unit is presented, nor does the infrequent exercise of
supervisory authority so ally such an employee with
management as to create a more generalized conflict of
interest of the type envisioned by Congress in adopting
Section 2(11) of the Act. Moreover, we have made clear
that such an employee is considered to be in the unit
only to the extent that his interests as a nonsupervisory
employee are involved. [Emphasis supplied.]
The "50 percent" rule was first established by the Board
in Westinghouse Electric Corporation, 163 NLRB 723,
where the Board held that a group of engineers who
supervised temporary craftsmen should not be excluded
from a unit of engineers since the engineers in question
spent less than 50 percent of their working time performing
supervisory duties . The Board stated in Westinghouse:
[T ]he supervisory jobs which the senior engineers may
be called upon to perform are not regularly and closely
intermingled with their nonsupervisory work activity.
Rather, depending upon the Employer' s assignment,
their status shifts, full-time, from supervisory to
nonsupervisory work for a measurable and continuous
period of time, and their duties in each position are
sharply demarcated. [Emphasis supplied.]
The Petitioner would apply the 50 percent rule used in
Adelphi. The Employer, however, objects to the 50 percent
rule as an "unlawful extension of the Board's authority." In
accordance with the Board's use of the 50 percent rule in
prior cases, I reject the Employer's objection to the rule,
especially in view of the Board's recent decision not to
reconsider the propriety of the 50 percent rule in Fordham
University, 214 NLRB 971.
It is yet to be determined, however, whether the 50
percent rule applies to Hochman. In Adelphi and Westing-
house, the Board included the directors and engineers
because they were essentially professionals, not supervi-
sors. They exercised only sporadic and incidental non-unit
supervisory authority over non-unit employees. In both
cases , the work of the non-unit employees was merely
adjunct to their professional work. The Board concluded
that their limited supervisory authority did not change the
nature of their work from professional to supervisory, nor
their relation to management. Here, however, Hochman is
not essentially a professional librarian. She is the Director
of the LRC with responsibility for the overall operation of
the LRC which includes administering the LRC budget
amounting to $121,200 and supervising between eight to
ten employees. Hochman's supervisory duties are not
infrequent and sporadic, but, rather, her supervision of the
LRC staff is an integral and regular part of her duties in
connection with the operation of the LRC. It cannot be
said that there is a sharp demarcation between her
supervisory duties and her nonsupervisory duties. Further-
more, the work performed by the LRC nonprofessional
staff is not ancillary to Hochman's work duties or her work
product, as was true of the work performed by the
nonprofessional employees in Adelphi and Westinghouse. In
Hochman's case, the facts show that there is a high degree
of similarity and interchangeability between her profes-
sional work and the work of the LRC staff. Thus, the facts
concerning Hochman are distinguishable from the facts
concerning the Adelphia directors and the Westinghouse
engineers, though part of the duties of each is supervision
of nonunit employees. In these circumstances, the 50
percent rule should not be applied to Hochman, and I,
therefore, conclude that she is a supervisor within the
meaning of the Act.
Even applying the Board's 50 percent rule to Hochman,
she must be deemed supervisory, though I credit Hoch-
man's testimony that she devotes less than 50 percent of
her time to givmg direct supervision to the LRC staff. The
question is how can Hochman meet the 50 percent test,
even though the majority of her time is not spent in direct
supervision. The answer is that Hochman does not have to
be giving direct orders or assignments to be engaged in
supervision. The facts show that Hochman exercises
substantial independent control over day-to-day operations
of the LRC including the supervision of the LRC.
Hochman spends approximately 90 percent of her working
time at the LRC, being available to assign and monitor
work, answer questions concerning work assignments,
approve purchase orders, grant time off, arrange schedules,
and handle any problems which may arise. Absent
Hochman's availability at the LRC to make these decisions
as necessary, the LRC staff would be completely without
supervision or leadership. Clearly, her supervision of the
LRC staff is not limited in duration to time spent in giving
direct orders. Given the nature and extent of her superviso-
ry duties, it must be concluded that Hochman meets the 50
percent test.
Moreover, the record establishes that Hochman will
supervise a professional media specialist upon his or her
employment during the academic year. Since the Board
favors inclusion of professional librarians in faculty
MOUNT VERNON COLLEGE 1241
bargaining units , absent some other basis for their
exclusion , ' Hochman would be excluded from the unit by
virtue of her supervisory authority over a member of the
bargaining unit.
Accordingly, as the authority exercised by Hochman is
more nearly analogous to the type of authority historically
recognized as "supervisory," I conclude that Hochman is a
supervisor within the meaning of the Act and I, therefore,
recommend that the challenge to Mary A. Hochman be
sustained.
Renee A. Taft
The Petitioner contends that Taft is a professional
employee who possesses a sufficient community of interest
to be included in the unit . The Employer would exclude
Taft based on its contention that she lacks a community of
interest with the members of the bargaining unit and that
she is not a professional employee.
Taft is employed by the Employer as an Academic
Advisor-Career Counselor. She has a master 's degree in
Political Science and she is a member of the faculty. Like
other faculty members, Taft is eligible to vote at faculty
meetings, serves on a faculty subcommittee , and reports
directly to the Dean of Academic Affairs. However , unlike
the teaching faculty members , Taft has no teaching
responsibilities , has a staff contract , is not paid according
to the faculty salary matrix , and is not eligible for
sabbatical leaves or leaves of absence.
Taft devotes approximately one-half of her time to
academic advising . In the morning , Taft shares an office in
the Office of the Registrar with a member of the teaching
faculty who also performs academic advising one-half time.
Taft counsels and assists students in planning their course
schedules, registering for their courses, and adding and
dropping courses . To be certain that she is familiar with the
course content , Taft consults with faculty members and on
occasion attends classes. Taft gives students, primarily
freshmen and sophomores , academic advice concerning the
types of courses they might pursue , and the curriculum
requirements for completing degree programs.
Taft spends the remainder of her time in the Learning
Resources Center performing career counselling. She
discusses career choices with students , individually or in
groups, that would be appropriate for the student while
keeping in mind the degree programs available to students.
Working with various teaching faculty members, Taft
develops career information for students and she conducts
career conferences to inform students of career options.
Taft is also engaged in locating part -time jobs, summer
jobs, internships , and permanent jobs for students. Since
her employment in June 1975 , Taft ordered and adminis-
tered one career test to determine occupational aptitudes.
However , Taft did not interpret this test since she is not a
qualified psychologist . For this same reason , Taft does not
counsel students with respect to emotional or personal
problems . Students are referred to Taft by faculty members
on a regular basis concerning academic and career
counselling . Faculty members are also responsible for the
guidance and counselling of students concerning academic
and career matters.
In regard to Taft's educational background , Taft testified
that her degree in political science is not a specialized
degree related to her work, although her degree assists her
in performing her job . She admits that her graduate degree
could have been obtained in any other subject matter. Taft
concluded that it is a combination of her degrees and prior
work experience that qualified her to perform her job.
A number of Board cases have focused upon the unit
placement of counselors. In resolving placement disputes,
the Board decisions tend to concentrate primarily upon the
question of whether or not they qualify as "professional
employees" under the Act - is their job predominantly
intellectual and vaned in character ; does it involve the
consistent exercise of discretion and judgment ; and does it
require advance knowledge customarily attained through a
prolonged course of specialized intellectual instruction and
study in an institution of higher learning . . . ?"
In Northeastern University, 218 NLRB 247 (1975), the
Board included the counselling and testing center person-
nel in a faculty unit because they appeared to share a broad
community of interest with the faculty. The counselling
and testing employees administered occupational and
psychological tests to students to determine occupational
aptitudes and they interpreted and counselled students
with respect to these tests . They also assisted students with
certain emotional and adjustment problems. The parties
stipulated that the counselors were professional employees.
The counselors held advanced degrees in clinical psycholo-
gy or in another psychological specialty . However, in that
case , the Board excluded from the unit a group of
"academic counselors" whose work involved counselling
students on a full range of academic substance , career
choices , and personal adjustment to various situations in
the college . The academic administrators and academic
counselors held various graduate degrees ranging from a
master's degree in education and guidance counselling to a
Ph.D in higher education. The Board concluded that they
did not share a sufficient community of interest to warrant
their inclusion in the unit . Furthermore , the Board found:
They are not required to have knowledge of the
advanced type , and are not performing the intellectual
and varied tasks contemplated in Section 2(11) of the
Act. The knowledge they are required to possess and
the duties they perform are not related to a discipline or
field of science , but require only a knowledge of the
University's curriculum and services.
In C. W. Post, supra, the Board included guidance
counselors as professional employees. These counselors
were qualified psychologists with psychology degrees. They
assisted students with emotional problems . On the other
hand, the Board found that admissions counselors and
academic counselors were not professional employees
under the Act. They all held bachelor's degrees , although
most of them had master 's degrees in progress. The
I Fordham University, supra, C W Post Center of Long Island University,
189 NLRB 904(1971)
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
academic counselors assisted students in determining and
scheduling their courses.
In the present case , unlike the professional counselors in
Northeastern and C. W. Post, Taft does not have an
advanced degree in clinical psychology , does not interpret
psychological and career aptitude tests , does not counsel
students concerning such tests , and does not assist students
with emotional problems . Rather, the facts concerning Taft
resemble the facts concerning the counselors who were
excluded in Northeastern and C. W. Post. The facts show
that Taft engages in academic and career counselling
similar to the type of counselling performed by the
counselors in those cases. And Taft, by her own account,
does not have an advanced degree in a discipline relevant
to her duties . Further, like the academic and career
counselors in Northeastern and C. W. Post, Taft is not
required to possess knowledge of the advanced type and is
not performing the intellectual and varied tasks contemp-
lated in Section 2(11) of the Act . I, therefore , conclude that
Taft is not a professional employee within the meaning of
the Act . Accordingly, I reccommend that the challenge to
Renee A . Taft be sustained.