Mercy College

National Labor Relations Board - Board Decisions

Aug 11, 1977

231 N.L.R.B. 315 (N.L.R.B. 1977)

MERCY COLLEGE
Mercy College and Mercy College Faculty Council.
Case 2-CA-13565
August 11, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
Pursuant to an election held on November 7 and 8,
1973, the Mercy College Faculty Council (hereinafter
referred to as the Union) was certified as the
collective-bargaining representative of the employees
in the unit sought on August 30, 1974, and requested
bargaining with Mercy College (hereinafter referred
to as Respondent or the College) on September 5,
1975. After the College refused to recognize and
bargain with the Union, the National Labor Rela-
tions Board issued a Decision and Order on July 11,
1975, in the above-entitled proceeding' granting the
General Counsel's Motion for Summary Judgment,
finding that the College's admitted refusal to bargain
with the Union violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, and
ordering the College to take appropriate action.
Thereafter, on October 15, 1975, the Board applied
to the United States Court of Appeals for the Second
Circuit for enforcement of its Order. On June 9,
1976, the court denied enforcement and remanded
the proceeding to the Board for an evidentiary
hearing on the voting eligibility of Neil Judge whose
ballot was challenged. On August 10, 1975, the Board
accepted the remand and ordered that a hearing be
held in accordance therewith.
On February 17, 1977, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, General Counsel, Re-
spondent, and the Union filed exceptions and
supporting briefs.
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 record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein and to adopt her recommended
Amended Order.
In finding that Judge was ineligible to vote because
he had an insufficient community of interest with
unit employees, the Administrative Law Judge not
only considered but also relied on evidence concern-
I 219 NLRB 81.
231 NLRB No. 52
ing Judge's postelection work schedule. Since only
the period preceding the election held on November
7-8, 1973, is determinative of eligibility, we do not
rely on such evidence concerning Judge's postelec-
tion work schedule and functions. 2
The record indicated that, during the preelection
period of his employment, Judge was primarily
involved in administrative activities. Although Judge
was hired in 1969 as a part-time teacher of physical
education, the College, in 1971, abolished physical
education as a requirement for students except those
who had entered before this change. During the first
semester of the 1973-74 academic year, Judge was
teaching three semester hours of physical education
either to the few students still required to take
physical education or to students who had elected to
take the course for credit. Nevertheless, as reflected
by the title given him in 1972, "director of athletics,"
Judge's duties had evolved in accordance with the
College's change in emphasis from compulsory
physical education to a voluntary program of
intramural and intercollegiate athletics. Under the
new system, Judge was assigned the responsibility of
designing, developing, and implementing an effective
intercollegiate and intramural program.
As director of athletics, Judge was employed
pursuant to a "letter of administrative appointment"
and was listed in the 1973-74 catalog as a member of
the "faculty of administration," but not as a member
of the "faculty of instruction." Unlike individuals
employed under "faculty contracts/full time," indivi-
duals employed under letters of administrative
appointment serve at the pleasure of the president
and the board of trustees and are expected to be on
campus year round. During this period of his
employment, Judge prepared budget requests; ar-
ranged for the distribution of tickets to athletic
events; represented the College in its relations with
various intercollegiate associations; obtained offi-
cials for the sporting events; participated in recruit-
ing athletes; and was responsible for purchasing all
sports equipment.
Although the record is unclear as to the exact
amount of time Judge spent on unit work, it is
apparent that he was primarily engaged in adminis-
trative functions. This conclusion is based on the
broad authority and discretion accorded Judge in
performing the administrative functions enumerated
above, as well as the significant amount of time
Judge spent in the performance of those functions.
Particularly noteworthy is the fact that Judge was
solely involved in administrative activities during the
summer recess. In short, he not only spent a very
significant amount of his time between September
2 See. e.g., Myers Bros., Inc., 218 NLRB 441 (1975).
315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and November 1973 on administrative functions or
work other than unit work,3 but also the entire
months during the summer recess unencumbered by
any unit work.4
Accordingly, we find, in agreement with the
Administrative Law Judge, that Judge was primarily
engaged in administrative duties and had insufficient
community of interest with eligible employees. Since
administrative personnel were stipulated from the
unit, we also agree with the Administrative Law
Judge that it is unnecessary to consider whether
Judge was also a managerial or supervisory employ-
ee.5
In conclusion, Judge was not eligible to vote in the
election; the Union failed to receive a majority of the
ballots cast; and as the College, therefore, had no
obligation to recognize or bargain with the Union,
we shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed amended Order of the Administrative Law Judge
and hereby orders that the complaint be dismissed in
its entirety.
a In this regard, we do not consider the time which Judge spent in
connection with refereeing intramural sports as "coaching." Unlike the
Administrative Law Judge, we do not regard the "helpful hints" he gave to
the losing team as constituting coaching.
4Since it is clear that Judge's performance of his administrative duties
occupied a very substantial amount of his time, we find it unnecessary to
resolve whether Judge spent a mathematical majority of his hours engaged
in administration; nor do we adopt the Administrative Law Judge's
utilization of a straight mathematical majority-of-hours standard for making
such a finding.
I However. since the Respondent excepts contending Judge was also a
supervisor, it is worth noting that there is nothing in the record which
indicates that Judge had any supervisory responsibility during the eligibility
period. (See Fordham University, 214 NLRB 971 (1974).) The only employee
Judge could possibly be considered to have supervised then is McMahon,
who appears not to have been hired until around the time of the election.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: The
charge herein was filed on December 24, 1974, and the
complaint issued on February 6, 1975. The complaint
alleged, and the answer admitted, that since about
September 25, 1974, Respondent Mercy College had
refused to honor the August 30, 1974, certification of
Mercy College Faculty Council (hereinafter called MCFC)
as the exclusive bargaining representative of a unit
consisting of "All full-time and regular part-time members
of the faculty employed by [Respondent] including
department chairmen, assistant library director and reader
librarians, [excluding] administrative personnel, the presi-
dent, assistants to the president, deans and assistant deans,
directors and assistant directors of academic advisors,
director of the library, all other employees, guards,
watchmen and supervisors as defined in" the National
Labor Relations Act, as amended (hereinafter called the
Act). On July 11, 1975, the Board issued its Decision and
Order (219 NLRB 81) granting the General Counsel's
Motion for Summary Judgment. The Board found that
Respondent's admitted refusal to bargain with MCFC
violated Section 8(aX5) and (1) of the Act notwithstanding
Respondent's contention that the certification was invalid
on several grounds, including the contention that the
determinative ballot in the underlying representation
election on November 7-8, 1973, had been cast by an
individual, Neil Judge, who was ineligible because he was
allegedly not in the bargaining unit. During the representa-
tion proceeding, and before Judge's challenged ballot had
been counted, Judge had been found eligible without a
trial-type hearing.
Respondent having refused to comply with the Board's
Order, the Board filed a petition to enforce the order with
the Court of Appeals for the Second Circuit. On June 9,
1976, that court denied enforcement and issued a decision
remanding the case to the Board for an evidentiary hearing
on Judge's eligibility to vote in the unit. N.L.R.B. v. Mercy
College, 536 F.2d 544. The court's Judgment pursuant to
this decision was filed on July 12, 1976. On August 10,
1976, under the docket number in the unfair labor practice
case, the Board ordered "that the record in this proceeding
be, and it hereby is, reopened and that a hearing be held
before an Administrative Law Judge to be designated by
the Chief, Division of Judges, for the purpose of taking
evidence in accordance with the court's remand. It is
further ordered that this proceeding be, and it hereby is,
remanded to the Regional Director for Region 2 for the
purpose of arranging such hearing, and that the Regional
Director be, and he hereby is, authorized to issue notice
thereof." This notice of hearing issued on August 17, 1976,
under the docket number in the unfair labor practice case.
In accordance with the notice of hearing, a hearing was
held in New York, New York, on November 8 and 9, 1976,
before me, duly designated by the Chief Administrative
Law Judge. At the outset of the hearing, Respondent's
counsel contended, in substance, that after the issuance of
the court's decision, the Board should have vacated the
Union's certification and should have reopened the
representation proceeding rather than the unfair labor
practice proceeding. This contention is renewed in Respon-
dent's brief. I hereby adhere to my hearing rejection of this
contention and of Respondent's related contention that,
because the hearing to be conducted by me was an unfair
labor practice hearing rather than a representation case
hearing, Respondent did not have any representation-case
burden of going forward with evidence in connection with
the challenge to Judge's ballot. Allied Metal Hose Company,
Inc., 219 NLRB 1134, 1137 (1975), and cases cited.
The principal issue litigated before me was Judge's
eligibility to vote. Upon the entire record, including the
record in the representation proceeding, and my observa-
tion of the witnesses who appeared before me, and after
due consideration of the briefs filed by Respondent and the
MCFC, I make the following:
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MERCY COLLEGE
SUPPLEMENTAL FINDINGS OF FACT
A. Evidence Allegedly Bearing on Judge's Eligibility
1. Summary of Judge's employment history, of
the development of Respondent's athletics program,
and of the employment and evaluation of coaches
Respondent operates a private, nonprofit college, which
until 1975 operated entirely on the undergraduate level.
Until September 1968 it was a religious college, and until
September 1969 it admitted women students only.
At the time of the November 1976 hearing, Judge had a
bachelor's degree and expected in December 1976 to
receive a master's degree in recreational education. He first
began working for Respondent in September 1969 as a
part-time teacher of "physcial education" (see infra).l At
this time, Respondent had a relatively small intramural
sports program, and its only intercollegiate sport was
women's basketball. In 1970, Judge was a part-time teacher
(lecturer) in "physical education," and had the title
"assistant director of physical education." Around 1970, he
began to coach a men's basketball "club" which until 1971
was financed by funds donated by other departments of
the College.2 Judge was the first and, until the fall of 1973,
the only men's coach employed by Respondent. About
1971, he began to work for Respondent on a full-time basis.
In the fall of that year, he agreed on Respondent's behalf to
the 1972-73 schedules for men's intercollegiate basketball
and baseball and (perhaps) women's intercollegiate basket-
ball. By memorandum written in September or October
1971, he asked Treasurer McCarthy for a $3,000 budget for
the 1971-72 basketball team. To the extent that this request
included the construction of indoor bleachers, Judge's
testimony that in 1973-74 he sometimes set up chairs for
home basketball games leads me to infer that the request
was not granted. The record fails to show the extent to
which, if at all, his other requests were granted. About
December 1971, Judge submitted to McCarthy a formal,
$1,895 initial budget request (see infra) for the 1972-73
women's and men's intercollegiate basketball season.
During the 1971-72 academic year, Judge taught "physical
education" and coached men's "club" basketball.
At some time between 1970 and April 1972, Judge
acquired from an undetermined source the title "coordina-
tor of athletics." At some time prior to 1970, Margaret J.
Melford acquired the title "director of physical education,"
which she retained until leaving the College at the close of
the 1973-74 academic year. Melford reported to the dean
for academic affairs, and Judge reported to her so far as his
"physical education" courses were concerned.
Until about 1971, all students were required to take
"physical education" courses but received no credit for
them. About 1971, Treasurer McCarthy and others asked
the faculty to consider whether to continue this require-
ment in view of its cost and its unpopularity among the
students. The faculty looked at this proposal through the
I My finding as to the date is based on Judge's testimony that he began
to work there when men were first admitted, a date fixed as September 1969
by the testimony of College Treasurer Walter McCarthy. Judge was
admittedly uncertain about dates. My finding as to the content of his first
job is based on the testimony of Judge. who as to this matter appeared to
have a better recollection than Dean for Student Services Paul Hughes.
curriculum committee. A compromise was evolved under
which the physical education requirement was abolished
for new students, although it was still imposed on students
who entered under the original arrangement. However, at
least through the first semester of the 1973-74 academic
year, students could elect to take physical education
courses for credit. In view of the continued (although
limited) physical-education requirement, Director of Physi-
cal Education Melford, who reported to the dean of
academic affairs, was retained until the end of the 1973-74
academic year. In the meanwhile, under the compromise,
as the compulsory physical education program was phased
out, the salaries and expenses previously devoted thereto
were to be transferred to a voluntary "athletics" program
consisting of intramural and intercollegiate games. The
athletics program came under the jurisdiction of the dean
for student services.
Treasurer McCarthy testified that the College adminis-
trative council decided to attempt "to introduce an
effective-particularly an [intramural] program, and at the
same time develop athletic teams which the college could
be proud of." Still, according to McCarthy, the College
administrative council decided, "within the limited re-
sources which the college had," to "develop programs
which would involve the greatest participation of students
on an [intramural] basis and the Director of Athletics was
to identify those programs and to develop them and at the
same time he was to associate the college with various
athletic associations and develop athletic teams in which
the college could participate and thereby bring honor and
prestige to the college." Except to the extent indicated
infra, there is no evidence that Judge was ever advised of
these decisions of the College administrative council. At
one point he testified that "really the idea of' intramural
games was to encourage the participants to "step up into
the varsity level."
In the summer of 1972, Judge asked Dean for Student
Services Hughes if Judge could have the title "director of
athletics," because the work he was beginning to do
involving the basketball team was quite different from his
original functions of teaching compulsory physical educa-
tion courses and starting the club basketball team. Hughes
told Judge that he could have the requested title, which
Judge retained at all times thereafter and at least until the
November 1976 hearing. At the same time, Hughes told
Judge that "while we did not know exactly what ... lay
down the road, the possibilities for growth were enormous,
obviously starting from nothing, and that it would be up to
him to design and develop intercollegiate and [intramural]
athletic programs." At this time, Respondent had never
fielded any intercollegiate teams except women's basket-
ball and, perhaps, women's field hockey. Judge was not
told anything one way or the other about obtaining
coaching help. Judge testified that "right away" he found
out, from an unspecified source, that he had the authority
to develop intercollegiate teams if student interest was
there "because the college was interested in having the
2 Judge described a tennis "club" as a tennis team which played other
college teams on an informal basis. Inferentially, a basketball "club"
engages in comparable activities.
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
teams because it was good for the kids, it was good for the
college to get kids coming and it was also good publicity if
we won." He testified that he got his initial "direction" to
develop a team in a particular sport "from the kids ... if I
just said we're going to have a basketball team, if I didn't
have any kids that [were] interested, it wouldn't do me any
good." 3 He also discussed with Director for Student
Services Hughes how to go about developing new athletic
programs. Every sport whose addition Judge recommended
was in fact eventually added, although sometimes (for
fiscal reasons) later than he recommended. So far as the
record shows, no sports were added without his recommen-
dation.
During the academic year 1972-73, the College's inter-
collegiate teams consisted of men's and women's basketball
and men's baseball, as well as a tennis "club" (supra, fn. 2).
In addition, the College had a "pick-up" soccer team which
may have played one or two games with other colleges, and
a few intramural sports, including basketball, softball,
touch football, table tennis, and badminton. During this
academic year, Judge was Respondent's only hired coach.
During this academic year, he agreed on Respondent's
behalf to the 1973-74 schedules for the intercollegiate
sports which were being played during the current 1972-73
academic year (men's and women's basketball and men's
baseball) and also for intercollegiate sports which Respon-
dent had not yet played on a full intercollegiate level,
namely, soccer and tennis.
During the academic year 1973-74, the period during
which the election fell, the College fielded intercollegiate
soccer and tennis teams, as well as the intercollegiate teams
in the sports played in 1972-73. About October 1973,
Judge told Hughes, the director for student services, that
Judge wanted to hire John McMahon, a student in his
senior year, to coach women's basketball. Hughes replied
that it was up to Judge, although Hughes did not think it
was a good idea to hire a student coach. Thereafter, Judge
hired McMahon. 4 Judge testified that, when he decided to
hire McMahon, the amount of money available was no
part of the consideration. Because Treasurer McCarthy
was originally not sure whether to pay McMahon, Judge
instructed McCarthy, by memorandum dated December
18, 1973, to pay McMahon the lump sum of $500 as salary
for serving as coach for women's basketball. This sum was
paid. Hughes testified that Judge "recommended" McMa-
hon's salary, but that Hughes did not know to whom this
recommendation was made. McCarthy denied knowing
anything about McMahon's hire. McCarthy further testi-
fied that salaries must be approved by the College
president. The record otherwise fails to show to whom
Judge made his recommendation about McMahon's salary,
and contains no evidence about how much Judge recom-
mended. During the 14-week practice and playing season,
Judge watched women's basketball practice once a week
3 Although Judge regarded intramural touch football as causing
excessive injunes, his budget requests for the period 1972-75 included touch
football.
4 My findings as to the circumstances of McMahon's hire are based on
Judge's testimony. Hughes testified on direct examination that Judge
advised him that Judge had already hired McMahon, and that Hughes and
Judge thereafter discussed McMahon's merits. However, on cross-examina-
tion he testified, "I do not recall a single occasion on which Mr. Judge
for 15 or 20 minutes. He also attended part of each of the
six home games. He gave McMahon advice, if McMahon
requested it, about such matters as the quality of offense or
defense, or if Judge saw something he disagreed with, such
as what Judge regarded as undue stress on winning and
unnecessary harshness toward and yelling at the players.
Judge testified that he "spent a lot of time with"
McMahon, but he "just didn't know how to handle" the
players. In the academic year 1973-74, Judge and McMa-
hon were Respondent's only paid coaches. Judge handled
all intramural sports and coached all intercollegiate sports
except women's and men's tennis and women's basketball.
In the academic year 1973-74, unpaid tennis-coaching
duties were performed by Dean for Student Services
Hughes, admissions department employee Hitz, and
faculty members Lindsay and Ronald Rebhuhn. Rebhuhn,
who was included in the voting unit, teaches primarily
American literature and American history, and is also a
teaching tennis professional. During this 1973-74 period,
he asked Hughes to be compensated for his tennis coaching
by either a salary or a decreased teaching load. Rebhuhn
was taken on as a paid coed tennis coach for the academic
year 1974-75. Hughes testified that he did not hire
Rebhuhn, did not decide to pay him rather than give him a
decreased teaching load, and did not decide how much he
would be paid. Hughes also testified that Judge hired
Rebhuhn as a coach, but Hughes admitted that he was not
present when this was done. Judge could not remember
how Rebhuhn's coaching services were obtained, expressed
uncertainty about when he became a salaried coach, was
not asked whether Judge participated in arranging for
Rebhuhn's compensation, and testified that Rebhuhn had
been "a fabulous coach for me." A 1974-75 budget revision
request prepared by Judge in March 1974 and submitted to
the College president contains a $400 entry as salary for
"Tennis Coach (Men and Women)." 5 The record fails to
show how much Rebhuhn was in fact paid in the academic
year 1974-75. I infer that Rebhuhn was taken on as a
compensated coach through the tacit agreement of Hughes
and Judge, and that neither participated in the negotiations
for the form of his compensation for the academic year
1974-75. I find the record insufficient to show how much
weight, if any, was given to Judge's recommendation in
determining how much to pay Rebhuhn. In May 1975,
Judge recommended Rebhuhn for a tennis coach's position
for the academic year 1975-1976. Rebhuhn received that
job. There is no direct evidence about how much, if any,
supervision Judge exercised over Rebhuhn's coaching
activity. On the basis of Rebhuhn's experience as a
professional tennis coach, MCFC contends that Judge
must have exercised virtually none. However, Judge's May
1975 evaluation of Rebhuhn states, inter alia, "I believe
that the year 1974-1975 was a turning point for Mr.
Rebhuhn.... I believe Ron had some self-imposed
retained a coach . .. .without having consulted me about that individual,
talked about it with me." Because Judge's version seems more probable than
Hughes' initial version, because on cross-examination Hughes largely
corroborated Judge, and for demeanor reasons, I credit Judge.
5 Judge mistakenly included this entry in a request which was supposed
to include only nonsalary items. However, it was transmitted to the College
president.
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MERCY COLLEGE
pressure on himself this year, with regard to winning. After
winning the first match Ron loosened up and I believe
started to enjoy his team even more than before." I infer
that in the academic year 1973-74, Judge did keep an eye
on Rebhuhn's coaching activities.
In 1974, after discussing the matter with Hughes, Judge
hired Angelo Petrone as an assistant men's basketball,
baseball, and soccer coach for the academic year 1974-75.
Dean for Student Services Hughes testified that, to the best
of his knowledge, Petrone's salary was fixed by Judge.
However, Treasurer McCarthy, whom I regard as more
knowledgeable in this area, testified that salaries must be
approved by the College president. The record further
shows that, in March 1974, Judge submitted a budget
revision request for 1974-75 setting forth a $2,500 salary
for "men's soccer coach and assistant coach for baseball
and basketball" (see supra, fn. 5). This document was
submitted to the College president. The record fails to
show how much Petrone was paid. In May 1975, Judge
recommended to Hughes that Petrone be employed as a
paid basketball and soccer coach for the academic year
1975-76. Petrone was so employed. In March 1976, Judge
discharged Petrone without checking with Hughes or, so
far as the record shows, anyone else.
During the academic years 1975-76 and 1976-77, Judge
designed, developed, and added to the curriculum a
softball program, a cross-country program, and golf. In
March 1975, he asked Hughes for permission to hire Cathi
Wasilik as head coach of women's softball, at a $500 salary
for the season. After discussions between Hughes and
Judge, Judge hired Wasilik, at a salary undisclosed by the
record. In May 1975, Judge recommended to Hughes that
Wasilik be given the position of women's coach for the
academic year 1975-76. This was done. In the spring of
1975, after discussions between Hughes and Judge, Judge
hired Nancy Thomas as a coach for women's basketball
and/or tennis. Hughes testified that Judge fixed her salary,
but McCarthy credibly testified that the College president
had to approve all salaries. On a date not shown by the
record, and after discussions with Hughes, Judge hired a
"Mr. Flowers" as a "coach."
The record fails to show whether Petrone, Wasilik,
Thomas, or Flowers would have been eligible to vote in the
representation election if they had been working for
Respondent at that time. Petrone was not a student.
In May 1975, Judge drew up "faculty evaluations" for
paid coaches Wasilik, Petrone, and Rebhuhn for the
current academic year. There is no evidence that Judge
ever previously made such evaluations. As of the Novem-
ber 1976 hearing, Judge's duties included such evaluations.
Nontenured faculty members, who were on the eligibility
list, were subject to periodic observation by department
chairmen, who were also on the eligibility list pursuant to
an agreement by Respondent's counsel.
6 This determination is made by McCarthy and others whose identity is
not clear in the record. There is no reason to suppose that Judge is among
them.
2. Judge's preparation of proposed budgets
About 30 heads of administrative course centers are
required to submit for each academic year a budget request
for their respective units the second March previous and a
revised budget request the March immediately previous.
Before submitting such requests, they normally confer with
the administrative council. These proposed budgets may
include new programs, if the person who submits them has
been asked or regards it as appropriate to add such new
programs. These budget requests do not include salaries.
Among the individuals required to submit such requests
are the 10 department chairmen, who were included in the
voting group by agreement of Respondent's counsel, and
Judge. Treasurer McCarthy, who receives copies of all the
requests, divides them by administrative function and
sends the compiled initial requests, and later the revised
requests, to the appropriate administrator (as to the athletic
department, Dean for Student Services Hughes) with a
request for his comments. While the direct evidence is
unclear, I infer from the probabilities of the situation that
these comments are based partly on discussions with the
person who prepared the proposed budget, at least if the
administrator materially disagrees with it.
After receiving the revised requests, McCarthy gives to
the appropriate administrator, including the dean of
student services, "some sort of budget constraints within
which we ask him to hve." If the dean for student services
regards the proposed constraint as unreasonable, he can
appeal and has appealed to the College president, perhaps
after consulting with Judge. Eventually, and after a
determination regarding the total amount of money
available for the College, 6 the president and the trustees
approve a lump-sum budget for each department, and also
allocate funds among the separate administrative areas.
Inferentially, this allocation is affected by the department
heads' proposed budgets and by the administrators'
comments thereon. Notwithstanding the lump-sum depart-
mental allocations, the administrator has authority to
reallocate funds between the departments in his area,
provided that the total amount allocated to his area is not
materially increased. Such reallocations are partly based
on the administrator's discussions with the heads of the
affected departments, or at least those whose lump-sum
budgets are to be reduced. After an allocation has been
made to the athletic department by the president and the
board of trustees, Treasurer McCarthy will routinely honor
any purchase-order requisition by Judge within the amount
allocated, irrespective of the distribution set forth in his
proposed budgets. 7 However, Hughes would have power to
take action in the event of gross and unexplained
variations.
Budget requests and revised budget requests for the
athletic department were prepared by Judge, and submit-
ted to McCarthy and Hughes, for the academic year 1972-
73 and thereafter. In preparing such budget requests, Judge
usually relied on his own knowledge and information. The
7 There is no evidence as to what McCarthy would do about expendi-
tures for items obviously inappropriate for the functioning of an athletic
department.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
budget requests drawn up by Judge were as follows:
Year
1972-73
1973-74
1974-75
1975-76
Original Revised
$1,895
$4,512
$8,538
not shown
$3,012 8/
$6,783
$11,143
$18,596
During the 1973-74 academic year, for which Judge's
initial budget request for the athletic department was
$4,512 and his revised budget request about $6,800, the
actual budget for that department was between $4,512 and
$5,000 and Respondent's total budget was about
$1,800,000. Judge's $6,800 revised budget request for the
academic year 1973-74, and his $8,500 initial budget
request for the academic year 1974-75, both of which
documents were submitted about March 1973, contain the
entry $4,512 (his initial budget request for 1973-74,
submitted about March 1972) under a column headed
"Approved Level 1973-1974." Judge's $19,000 revised
budget request for the academic year 1975-76, submitted
about March 1975, contains a $10,000 entry under a
column headed "Approved Level 1975-1976." McCarthy
testified that the College had "normally" given Judge more
money than requested in his initial budget request, but less
than requested in his revised budget request. McCarthy
further testified that because the academic years 1974-75
and 1975-76 were "good" years "in terms of enrollment,"
the College had given some additional increases in the
athletic area "because we feel it is an important one . . . in
which we want to foster growth." This testimony aside, the
record fails to show how much was in fact allocated to the
athletic department or its relationship to the College's total
budget.
Judge also had the authority to submit a budget revision
request for a current academic year, should he find that
this was called for by some "extraordinary circumstance."
In the spring of 1976, Judge submitted such a request to
McCarthy, in order to finance participation of the
College's very successful women's basketball team in
postseason invitational tournaments.9 Because of the size
of the amount requested, which is not shown by the record,
McCarthy did not have the authority to grant it. He
referred the request to the College president, who approved
it.
3. Judge's activities related to tickets
No admission is charged for a substantial proportion of
the College's athletic contests. Whether to charge admis-
sion, and how much, is left to Judge. About the 1972-73
academic year, Judge decided to charge $1 per person
admission to basketball games. He decided on the $1
8 The initial request assumed that the Student Government Association
would budget intramural sports, which were included in the revised request.
9 My finding as to the date is based on Judge's testimony that "Just the
past year with the women we have had a couple of overnights in post-season
tournaments."
amount as an acceptable compromise between obtaining
revenue, encouraging high attendance, and charging a
price which was fair considering the quality of the play.
Judge arranged for the preparation, sale, and receipt of
these tickets through student volunteers. Judge also decides
who is to receive passes; according to McCarthy, Judge
probably gave out more tickets than were sold. Proceeds
from the sale of tickets belong to the athletic department,
and are not taken into account by Judge's superiors in
determining how much to allocate to the department
budget. Judge testified that, after a game, he would take the
ticket proceeds to put into his budget for "buying oranges
and stuff like that." Treasurer McCarthy testified that
Judge charged only "nominal admission," that gate
receipts were "not a great amount of money," and that
until 1976 the College did not try to find out how much
they were.
4. Judge's activities in connection with
membership in athletic conferences, and
arrangements for sports officials and scheduling
During the academic year 1972-73, Judge acted for
Respondent when it and five other colleges formed the
Palisades Athletic Collegiate Conference, which at least at
that time had only a men's basketball schedule. Before
joining the PACC, Judge discussed the matter with
Hughes, but did not receive any instruction or directive
from anyone about the matter. Judge represented the
College at PACC meetings. From the absence of any
reference to PACC dues in Judge's budget requests for the
relevant academic years, I infer that no dues were charged
(cf. infra, fn. 10). The PACC disbanded after the academic
year 1973-74. In September 1973, Judge applied on the
College's behalf for membership in the Eastern College
Athletic Conference, which granted the application about
January 1974. Judge did not ask for permission to join, but
before applying for membership he talked about it with
Hughes, who said it was probably a good idea. The ECAC
dues are $350 a year. About 1976 (infra, fn. 10), Judge
applied on the College's behalf for membership in the New
York State Association for Women, the Eastern Regional
Association (which admits only NYSAW members), and
the Eastern Intercollegiate Athletics for Women (an
intercollegiate women's athletic conference, which admits
only ERA members). Before applying for membership in
the EIAW, Judge told Hughes that Judge was going to join,
and Hughes said "fine." After learning that ERA and
NYSAW membership was a precondition to EIAW
membership, Judge so advised Hughes, who (so far as the
record shows) voiced no objection to joining the first two
associations. The record fails to disclose the dues required
(see infra, fn. 10). Also about 1976, the College became a
member of the National Collegiate Athletic Association,
the Hudson Valley Women's Athletic Conference, and the
Metropolitan Collegiate Tennis Association.'o Judge dis-
cussed membership in each of these organizations with
Hughes before submitting an application therefor. The
'O My finding as to the date that the College joined these organizations is
based on Judge's November 1976 testimony that the College joined some of
them "within the last three years," and on the fact that Judge's proposed
320
MERCY COLLEGE
record fails to show the amount of dues required (see supra,
fn. 10). Applications for all these organizations had to be
signed by the College president. The College joined all
athletic associations recommended by Judge. Judge is the
College's sole representative in all these associations except
the NCAA, which requires that the representatives include
the president.
Whenever the College plays a home game as a member
of any of these athletic conferences or associations, the
College is required to obtain a referee or umpire approved
by the "IAABO" or by the College Board Official
Association. Judge determines 'whether to obtain such
officials through the conference or independently. Judge
obtains men's basketball coaches through the ECAC,
which the College pays $200 a year therefor. Judge, and
Judge alone, selects baseball umpires (at $35 a game) from
those who have the requisite organizational approval and
do not have an assignment (at $50 a game) directly from
the ECAC. McCarthy has never turned down a budget
expenditure request submitted by Judge to pay an official.
About spring 1975, Judge delegated to the women's softball
coach, Wasilik, the authority to obtain officials from the
Hudson Valley Board, of which she herself is an official.
Judge is responsible for scheduling events in the gymna-
sium and the tennis courts, and is responsible for renting
baseball diamonds and tennis courts. Diamond rentals
totaled $300 for the academic year 1973-74. Also, Judge
arranges for scheduling athletic events. At the time of the
November 1976 hearing, he was scheduling some events 2
or 3 years in advance. When Judge added new sports to the
program, he arranged for competition and scheduling.
5. Judge's activities in connection with purchases,
maintenance, and first aid
Judge is responsible for purchasing uniforms, balls, and
all other sports equipment, for which he shops around, at
least partly in retail sporting goods stores, to obtain the
lowest prices. After deciding where to buy the desired
items, he fills out a requisition for a purchase order and
submits it to McCarthy's office, which makes out the
purchase order and sends it to the supplier. McCarthy's
office has never refused a requisition signed by Judge. Nor
would the office ever so refuse, unless the purchase would
cause the athletic department to exceed its lump-sum
budget. Judge's revised budget request for 1973-74 sought
a total of about $1,700 for uniforms, balls, first aid
equipment, and "medicold."
Judge also inspects equipment to see what is worn out or
broken and must be replaced. During the 1973-74 season,
he handed out uniforms (which the athletes were expected
to wash during the season) at the beginning of the season,
collected them at the beginning of the Christmas break,
and his wife wash them during the break, handed them out
after the break, and at the end of the season sent them to
be cleaned and stored. If the gym was dirty, he would write
a requisition to the maintenance department to clean it up.
He would repair the scoreboard with a screwdriver, and set
budgets through the academic year 1975-76, although some recite the
ECAC officials' fees, do not refer to the remaining organizations. Judge's
proposed budgets for the 1976-77 academic year are in the rejected-exhibit
folder.
up chairs for home basketball if the maintenance depart-
ment was busy. He also administered first aid to injured
athletes, before sending them to a doctor.
6. Judge's activities in connection with athletic
scholarships
Respondent began to give athletic scholarships in 1972,
when two were awarded. Judge recruits or passes on the
coaches' recruitment recommendations regarding students
to receive such scholarships. Athletic scholarships must be
approved by McCarthy, the dean of admissions and
records, and, perhaps, the director of admissions, none of
whom was on the eligibility list. Within the amounts
available for athletic scholarships, Judge's recommenda-
tions as to who receives such scholarships and the amount
to be given are always followed. The amounts granted
range from $200 to the entire $1,700 charged for tuition
and fees.
Students who seek academic scholarships normally apply
directly to the admissions office, whose recommendations
in this respect are generally followed by the committee on
scholarships and financial aid. Dean for Student Services
Hughes is a member of this committee. The record fails to
show who the other members are.
7. Judge's responsibilities in connection with equal
opportunity to women in sports
In the spring of 1974, McCarthy told Judge that he was
responsible for seeing that the College's program and
facilities offered equal opportunity to women in the area of
sports, as required by 1972 Federal law and proposed
regulations thereunder (86 Stat. 373, 20 U.S.C. Sec. 1681,
Title 9 of the Education Act of 1972).
8. Judge's place in the College hierarchy, and his
relative pay scale
Highest in the College's administrative hierarchy are the
College's board of trustees, of which the president is a
member. Under the board of trustees are the administrative
council, which consists of the seven heads of the College's
administrative segments: namely, the dean for student
services, the dean for academic affairs, the director of
development, the treasurer, the dean for bilingual pro-
grams, the executive assistant to the president, and the
director of admissions and records. None of these was on
the eligibility list." At least since 1970, Judge has never
attended a meeting of this council. The next step in the
hierarchy is administrative personnel who (unlike Judge)
do not report directly to a line officer. Then come persons
who (like Judge) do report to a line officer: in Judge's case,
the dean for student services. The other individuals who
report to the dean for student services, namely, the director
of the counseling center, the director of student activities,
the placement officer, the school doctor, the school nurse,
and the director of chorus, were not on the eligibility list.
"1 In so finding, I assume that the exclusion of "administrative personnel
· . .directors and assistant directors of academic advisors" encompassed
the director of development and the director of admissions and records.
321
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The faculty generally report, through their department
chairman, to the dean for academic affairs. 2 Judge's salary
for the 1973-74 academic year was about the same as that
of the college relations officer (on the same level as Judge);
lower than that of the director of counseling (25 to 30
percent), 13 the director of student activities (5 percent), the
financial aid officer (5 to 10 percent), and the assistant
director of admissions (10 percent), all of whom were on
Judge's level; and lower (10 percent) than that of the
placement officer, who was on a level below Judge. In the
period between the calendar year beginning July 1, 1972,
and the calendar year beginning July 1, 1976, Judge's
annual salary increased from $10,000 to $14,750.14
9. Judge's employment contract and his listing in
the College catalog
Judge is employed by the College pursuant to a "letter on
administrative appointment." Such a letter dated June 20,
1973, which is typical of the letters annually received by
him between 1972 and 1976, states, "You are requested to
serve as Director of Athletics.'5 Effective July 1, 1973, you
will be paid at the annual rate of. . . for your administra-
tive position." These letters were signed by the College
president, but did not call for or bear any signature by
Judge. Treasurer McCarthy testified that this type of letter
is used for all administrative appointments "on advice of
counsel because we had wanted at that time to make clear
that the administrative appointments were at the pleasure
of the President and the Board of Trustees." Persons
employed under a "letter on administrative appointment"
are expected to be on campus all year round, they are paid
every 2 weeks, and their salaries are developed by the
president, the treasurer, and the supervisor of the area and
approved by the board of trustees.
Treasurer McCarthy testified that in 1973 some persons
who held letters on administrative appointment but were
not parties to a "Faculty Contract/Full Time" also taught
"on a part-time basis." Such individuals, who included
McCarthy himself and the director of placement, were
none of them on the eligibility list. In that academic year,
such persons, as well as Judge, were employed under what
McCarthy described as a "part-time teaching contract."
This document confirms the individual's appointment as a
"part-time lecturer," and specifies the dates when the
semester in question begins and ends, the number of
semester hours, and the compensation, which is to be paid
in three equal installments, the last after final grades had
been submitted. This document is to be signed by the
"lecturer" as well as the College president. The Regional
Director found, in his Supplemental Decision issued on
March 7, 1974, that part-time faculty work under a similar
document (see Exh. G, p. 14, attached to that Decision).
The Regional Director's finding in this respect appears to
be unchallenged.
McCarthy testified that persons who have "full-time
faculty rank" are employed under a printed contract
12 As previously noted, as a lecturer in "physical education" Judge
reported to the director of physical education, who reported to the dean for
academic affairs.
13 Salaries are based somewhat on length of service, and she had been
working for the College since 1961, as compared to Judge's starting date of
headed "Faculty Contract/Full Time." This contract,
among other things, affords the faculty member employ-
ment throughout the academic year specified at the annual
salary specified; gives him the option of 26 biweekly or 9
monthly paychecks; calls for deductions therefrom where
authorized by the faculty member; specifies a maximum
teaching load of 12 semester hours each semester; requires
him to perform related duties, including, inter alia,
participation in committee work, moderation of student
activities, and attendance at faculty meetings; incorporates
the provisions of the College's bylaws, statutes, and faculty
handbook (none of which is in the record); affords the
faculty member certain rights to engage in other work; and
affords him the right to a hearing if given a notice of
termination for cause. The form contract calls for signa-
tures by the president, the faculty member, and (as a
witness) the academic dean.
McCarthy testified that every "full-time faculty member"
signs that contract, including "administrators who are also
full-time faculty members." He further testified that the
College president has full-time faculty rank and signs that
contract, and that this contract was also signed, for the
1973-74 academic year, by the dean for academic affairs,
the dean for student services, the assistant dean for
academic affairs, the director of the counseling center, and
the assistant to the dean for disadvantaged programs. None
of the persons specified in the preceding sentence was on
the eligibility list. McCarthy further testified that "a person
who holds a full-time teaching contract holds faculty rank
and is obligated to teach a certain number of courses for a
certain amount of money.... Someone who teaches
courses which are not scheduled per se, in other words not
a specific number of courses but teaches only one or two
courses a semester is called a part-time teacher and would
not have full time faculty rank." The Regional Director
found, in his Supplemental Decision issued on March 7,
1974, "Some of the full-time faculty . . . under contract
receive a letter requesting them to serve in an administra-
tive position, with a reduction or complete elimination of
teaching load" (emphasis in original). A footnote to the
Supplemental Decision at this point refers to, inter alia,
Exhibits H and I attached thereto. Exhibit H is a letter
from the College president dated May 31, 1973, and
stating, inter alia, "You are requested to serve as Assistant
Academic Dean. Effective July 1, 1973 you will be paid at
the annual rate of --- for your administrative position.
This will be in addition to your contracted salary as an
Associate Professor. Your teaching requirements will be
reduced to three semester hours per semester." Exhibit I,
also a letter from the College president dated May 31, 1973,
states, "You are requested to continue to serve as Director
of the Counseling Center. The teaching requirements of
1969. However, the placement officer, who reported to her, was also paid
more than Judge, although on a lower level than he.
14 In 1973, Judge also received $735 for his services as a part-time
lecturer.
15 The 1972 letter states "Co-ordinator of Athletics.'
322
MERCY COLLEGE
your academic contract will be fulfilled in the performance
of your administrative position."16 The Regional Direc-
tor's findings in this respect appear to be unchallenged.
In 1973, the dean for academic affairs, the dean for
student services, and the dean for bilingual programs were
parties to a "Faculty Contract/Full Time" and, in
addition, taught "part time for additional money" pursuant
to letters of appointment. None of the persons named in
this paragraph was on the eligibility list.
Raises under the "Faculty Contract/Full Time" are
effective September I. They are developed by the dean for
academic affairs in conjunction with the treasurer and
president, and are approved by the board of trustees. The
faculty are notified about these raises around the Easter
preceding their effective date. Persons working under such
contracts are not required to be on campus in the summer.
The College's catalog for the academic year 1971-72,
which catalog was prepared in 1970, includes Judge in its
listing of the "faculty of instruction" with the notation that
he is a "lecturer." That same catalog elsewhere lists him as
the "assistant director of physical education," and lists
Margaret J. Melford as the "director of physical educa-
tion." The College catalog for the academic year 1973-74,
which catalog was prepared in 1972, does not list Judge as
a member of the faculty of instruction, but does list him as
a member of the faculty of administration, with the title of
"director of athletics." This same "faculty of administra-
tion" list names Melford as the "director of physical
education." Melford was on the eligibility list, did not have
a letter on administrative appointment, and reported to the
academic dean. This same "faculty of administration" list
also includes the 10 department chairmen, all of whom
were on the eligibility list, and all of whom are also listed
under "faculty of instruction." Also on the "faculty of
administration" list are six directors, none of them on the
eligibility list, who did not teach during that academic
year,17 and seven who did teach. This last group of seven
consist of five individuals who were not on the eligibility
list ' 8 and two who were on that list, namely, the director of
dramatics and the director of law enforcement education.
The former, whose job was to put on a student play, was a
"full time" faculty member and, inferentially, was working
under a "Faculty Contract/Full Time." The record fails to
show whether such a contract was also possessed by the
latter, who did not have a letter on administrative
appointment. When asked whether the latter was "a
Department Chairman," McCarthy replied, "It wasn't
quite a department yet, it is now, it is the same thing as the
athletic program, sort of a staged thing which developed as
the college gets bigger."
10. The division of Judge's working time
Judge is required to work on campus 12 months a year.' 9
The record directly shows that July and August are his
I6 The Regional Director stated that these letters were "examples" of
letters received by full-time faculty members who perform administrative
duties. The two recipients of these particular letters were not on the
eligibility list.
'liNamely. the directors of admissions and records, development,
chorus, buildings and grounds, student activities, and interfaith center.
18 Namely, the director ofcareer counseling (who taught an intersession
course). the director of undergraduate advising, the director of the
counseling center, McCarthy. and Judge.
principal planning time for scheduling matches, accumulat-
ing equipment, and arranging for facilities. I infer that the
rest of his time during the summer recess is similarly spent.
Hughes testified that Judge is expected to work "up to 40
hours" a week, "I'm sure there were weeks that it was more
than 40 hours." I infer that, during the summer recess, he
worked about 35 hours a week. The first semester of the
academic year 1973-74 began on Monday, September 10,
1973, and ended on Sunday, December 23-a total of 16
weeks (see Resp. Exh. 4). Inferentially, the second semester
began on Monday, January 17, 1974, and ended on
Sunday, May 5.20
More or less continuously between 1970 and the end of
1973, Judge taught courses in "physical education."
Students who wished to take this course for credit were
required to attend for 3 hours a week. Students who
because of their entrance date were required to take
noncredit courses in "physical education" could fulfill this
requirement by attending I or 2 hours a week. The parties
are in dispute about how many hours Judge spent teaching
such courses in the fall of 1973, and whether he taught
them at all during the following semester.
The record contains a document dated September 24,
1973, and signed by Judge and the College president,
stating, inter alia:
This will confirm your appointment as a part-time
lecturer:
Semester
Fall
(9/1 0-1 2/23/73)
Year Hours
1973 3
The form "Faculty Contract/Full Time" then in use
provided, inter alia, "The teaching schedule of the Faculty
Member shall consist of not more than 24 semester hours
of lecture, seminar, and/or laboratory work.... A
semester hour will be computed in the same manner in
which the College computes the number of lecture and/or
laboratory hours necessary for a student to obtain a single
credit." Hughes testified that the "physical education"
course taught by Judge was a "half credit" course,
inferentially because, as shown elsewhere in the record,
that course consisted solely of gym activities and did not
involve any written work. This evidence, standing alone,
strongly suggests that in order to teach 3 "semester hours"
of physical education, Judge had to teach 6 clock hours.
Accordingly, I accept Judge's testimony that he taught 6
clock hours a week that semester. I attribute the confusion
in some of his other 1976 testimony as to this 1973 matter
19 This finding is based on the fact that he is paid every 2 weeks
throughout the year, without any option of being paid during the academic
year only; on the fact that, between 1972 and 1976, he received five
consecutive letters of appointment, each effective July 1: and on Hughes'
testimony that Judge has certain duties during July and August.
20 This inference assumes that the semesters were of equal length, and
takes into account a I-week Easter break.
323
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the fact that the students who were taking physical
education as a required, noncredit course were required to
attend only I or 2 hours a week, and to the fact that Judge
was teaching two different classes, which each met a total
of 3 clock hours a week but did not necessarily meet the
same number of clock hours the same number of times per
week. While Hughes testified that "as an instructor,
[Judge] would spend a number of hours [teaching] equal to
the number of credits of the courses he was teaching," I
infer from the context of his testimony that he was referring
to the practice followed in ordinary academic courses
which call for written work.
Judge testified that he spent 3 to 4 hours a week in
preparation for such teaching. Portions of his December
1973 affidavit, read into the record to establish the truth of
the matter upon Judge's testimony that he could not recall
whether he taught in 1974,21 recite that during the first
semester of the 1973-74 academic year he spent I hour a
week preparing for such teaching. As to his activities in the
fall of 1973, I regard his December 1973 statement as more
reliable than his testimony given in November 1976, when
his recollection was admittedly uncertain as to his 1973
activities.
Respondent's records contain no indication that Judge
did any teaching during the second semester of the 1973-74
academic year. When testifying at the November 1976
hearing, Judge could not remember whether he taught
"physical education" during that semester. There is no
substantial evidence that he thereafter taught "physical
education," which, as previously noted, was being phased
out as a required course (see supra, fn. 21).
Between September 10, 1973 (when the academic year
began), and about October 7, Judge worked about 40 hours
a week, of which 10 to 12 hours a week were devoted to
coaching intercollegiate soccer and (after mid-September)
4 hours a week to handling intramural athletics. Between
about October 8 and 21, he worked about 40 hours a week,
of which 4 hours a week were devoted to handling
intramural athletics. Between October 22 and December
10, 1973, and from December 27, 1973, through February
1974, Judge worked 50 to 55 hours and sometimes 60 hours
a week.2 2 During this period (other than the December 10-
27 break), Judge devoted about 4 hours a week to handling
intramural sports, 10 to 12 hours a week to coaching in
preparation for men's intercollegiate basketball contests,
and (after November 21) 4 to 6 hours a week as a coach
during the games themselves plus 2 to 3 hours of travel
time for each game on the road.23 During the December
10-22 period, he worked (inferentially) 35 hours a week,
and the following (Christmas) week, he worked (inferen-
tially) 28 hours. He performed no coaching during this
period, but did "stuff around the office," such as sched-
uling games or ordering equipment. From March 1974
until final examinations beginning about April 28, includ-
ing the Easter break, Judge worked 35 to 40 hours a week.
During this period, he spent about 4 hours a week handling
21 This 1973 affidavit does not, of course, have probative value as to what
Judge's 1974 activities were in fact. However, contrary to Respondent's
suggestion at the hearing, I do not think that the affidavit's references to
such activity impeach Judge's veracity. Read as a whole and in context, the
affidavit's references to 1974 activities appear to be an estimate of what
Judge anticipated as of late 1973.
intramural athletics, 15 hours a week in intercollegiate
baseball coaching and preparation therefor, 6 to 9 hours a
week coaching at baseball games, and an undisclosed
amount of additional time traveling to and from baseball
games.2 4
During the rest of the 1973-74 academic year, Judge
spent the rest of his workweek performing the other
functions described in earlier portions of this Decision.
Judge decided how much time he could spend coaching
in view of his other duties, which sports he would coach
himself, and which sports he would hire coaches for.
McCarthy and Hughes gave testimony suggesting that
whether Judge was to coach or not was entirely up to him. I
regard this testimony as somewhat misleading. Rather, in
view of the 1973-74 expansion of the athletics program as
compared to 1972-73, and the fact that Judge was still the
only full-time member of the athletics department, I
conclude that Judge's superiors expected him to do all the
coaching he had time for, and to transfer only the coaching
duties he had no time for.
B. Postelection Turnover in the Voting Group
The eligibility list for the November 7-8, 1973, election
contained 85 names. As of November 8, 1976, the first day
of the hearing before me, 57 were still in the College's
employ. Treasurer McCarthy testified that, as of that date,
the College employed 226 employees who fell within the
voting group described in the direction of election.
Analysis and Conclusions
The Regional Director's Supplemental Decision conclud-
ed that Judge should be included in the unit because, inter
alia, his work during the calendar year was not primarily
administrative. The Board denied review of his determina-
tion in this respect, and the court of appeals did not disturb
the standard used by him. Accordingly, that standard is
binding on me.
In part I, A, supra, I have summarized how Judge spent
his time between July 1, 1973, and June 30, 1974, the
period within which the election fell. Attached hereto as an
appendix [omitted from publication] is a tabular summary
of how Judge's worktime was divided during this period. In
preparing this summary, I have classified as "coaching"
rather than "administrative" the time which Judge spent in
connection with intramural sports, in view of Judge's
credible testimony that on request he gave "hints" to the
players, that when officiating at such sports he tried to give
helpful advice to teams which were being "demolished,"
and that he regarded the purpose of such sports as
encouraging the participants to start competing at the
varsity level. This tabulation establishes that, during this
period, Judge spent much less than half his worktime
coaching and teaching. More specifically, the tabulation
shows that, during this 12-month period, Judge worked a
total of 2,067 hours, of which 716 hours were spent
22 Judge halted athletic activities before the Christmas break, and
resumed them before the end of the break.
23 During one-third of this period, he spent 6 hours per week coaching at
games. The rest of the time, he spent 4 hours per week.
24 As the College had no baseball diamond of its own, the team had to
travel to almost all of the I I to 13 games played that season.
324
MERCY COLLEGE
coaching and teaching. Further, during the academic year
1973-74 within which all this coaching and teaching were
performed, Judge worked a total of 1,486 hours. Accord-
ingly, Judge spent somewhat less than half his time
coaching and teaching even during the academic year. The
MCFC does not appear to contend that he performed any
nonadministrative work other than coaching and teaching.
Accordingly, I find that Judge was not eligible to vote in
the election because he had an insufficient community of
interest with those who were concededly eligible. In view of
this conclusion, I need not and do not pass on Respon-
dent's contention that Judge was ineligible because he was
allegedly a supervisor and/or a managerial employee, or on
its further contention that in any event a new election
should be held in view of the turnover in and expansion of
the unit, and the time interval which has elapsed, since the
election.
AMENDED CONCLUSIONS OF LAW
The Conclusions of Law numbered 4 through 7 in the
Board's original Decision and Order (219 NLRB at 84) are
withdrawn, and the following are substituted therefor:
2" 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 amended Order herein shall, as provided in
"4. The above-named labor organization is not now,
and never has been, validly certified as the exclusive
representative of all employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
"5. By refusing on or about September 25, 1976, and at
all times thereafter, to bargain collectively with the above-
named labor organization as the exclusive bargaining
representative of all the employees in the appropriate unit,
Respondent has not engaged in unfair labor practices
within the meaning of the Act."
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 amended
Order:
AMENDED ORDER25
The complaint is dismissed in its entirety.
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.
325