The Trustee of the Stevens Institute of Technology

National Labor Relations Board - Board Decisions

Jan 8, 1976

222 N.L.R.B. 16 (N.L.R.B. 1976)

16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trustee of the Stevens Institute of Technology
and Stevens Chapter, American Association of Uni-
versity Professors , Petitioner . Case 22-RC-6347
January 8, 1976
DECISION ON REVIEW AND
CERTIFICATION OF REPRESENTATIVE
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On July 9, 1975, the Acting Regional Director for
Region 22 issued his Supplemental Decision and Or-
der in the above-entitled proceeding, resolving a sin-
gle objection as well as a number of challenged bal-
lots. Among the challenged ballots resolved by the
Regional Director was that of Kai E. Thomenius.
Thereafter, in accordance with the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the Employer filed a timely request for re-
view of the Regional Director's decision.
On September 18, 1975, the National Labor Rela-
tions Board by telegraphic order granted the request
for review solely with regard to the issues raised con-
cerning the challenge to Thomenius' ballot, but re-
served ruling on the merits until the issuance of a
revised tally of ballots, when it could be ascertained
whether Thomenius' ballot was determinative.
On September 25, 1975, a revised tally of ballots
was issued and served on the parties, showing that of
104 valid ballots cast, 52 were for and 51 against the
Petitioner and there was I challenged ballot. There-
fore, the challenge to the ballot cast by Thomenius is
determinative.
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 in this
case with respect to the issues under review, includ-
ing the Employer's and Pefftioner's statements of po-
sition, and makes the following findings:
Kai Thomenius was hired as a visiting instructor
for the 1974-75 academic year to replace Professor
Cohen who was on sabbatical leave. At the time of
hire Thomenius was informed that his appointment
was only possible because of Cohen's absence and
that he would not be rehired since there were no
available faculty positions. At the completion of his
first year at Stevens, however, Thomenius was of-
fered a reappointment to substitute for Professor Al-
exander who was to go on sabbatical leave upon
Cohen's return. Thomenius refused this offer and has
departed from Stevens.
During the aforementioned 1974-75 academic
year Thomenius served as a full-time faculty member
performing the same research and teaching duties as
the regular faculty, receiving compensation compara-
ble to new faculty (his salary was based on the tradi-
tional one-half of the absent professor's salary), en-
joying the same fringe benefits, and working under
the same supervision. While not a voting member,
Thomenius participated in departmental and faculty
meetings. He also unofficially served on a committee
to develop a new medical and clinical engineering
program. The Regional Director concluded that
Thomenius shared a community of interest with reg-
ular faculty sufficient to warrant his inclusion within
the bargaining unit.
The Employer contends that Thomenius served
under a 1-year contract with knowledge that reap-
pointment was not possible. Thus, the Employer ar-
gues that Thomenius was merely a temporary em-
ployee with no reasonable expectancy of continued
employment and, therefore, should be excluded from
the unit. We find merit in the Employer's contention.
From the outset of his employment at Stevens,
Thomenius was apprised of the limited 1-year dura-
tion of his contract. In these circumstances, we find
that Thomenius was merely a temporary employee
for a specified limited duration and, on the eligibility
and election dates, had no reasonable expectancy of
further employment.' Therefore, we find that Tho-
menius was ineligible to vote, and we sustain the
challenge to his ballot .2
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots have been cast for Stevens Chapter, American
Association of University Professors and that, pur-
suant to Section 9(a) of the Act, the foregoing labor
organization is the exclusive representative of all the
employees in the following appropriate unit for the
purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment:
i Goddard College, 216 NLRB No 81 (1975). We note, as set forth above,
that at some point Thomenius was offered another temporary appointment
for the succeeding academic year, but declined. Such an offer however was
made after the election herein which was held on May 21, 1975
2 Subsequent to the issuance of the revised tally of ballots the Employer
filed a timely objection to conduct affecting the results of the election to
wits that the total valid votes cast was 105 and not 104, as determined by the
Regional Director following his voiding of a ballot marked solely "Ae-
sTArN" across both the "yes" and "no" boxes . In his Second Supplemental
Decision the Regional Director overruled this objection . Thereafter, the
Employer filed a timely request for review of the Regional Director 's deci-
sion Having reviewed the Employer's request for review in light of the
record, we deny it, with respect to this objection , as raising no substantial
issues warranting review
222 NLRB No. 18
TRUSTEE OF THE STEVENS INSTITUTE 17
All full-time members of the Regular Faculty of
the Employer at its Hoboken, New Jersey cam-
pus, including professors, associate professors,
assistant deans, and regular faculty members
presently engaged as visiting faculty members at
other institutions of higher learning but exclud-
ing adjunct or part-time faculty members on
temporary leave from other institutions of high-
er learning and all other Special Faculty mem-
bers, librarians, lecturers, aerospace faculty
members, ROTC faculty members, laboratory
technicians, administrative officers, department
heads, deans and all other supervisors as defined
in the Act and all other employees.